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Proof of Trial Success
The firm of Fishman McIntyre P.C. enjoys the reputation of being a hard-nosed defense firm that takes many cases to verdict. The members of the firm have extensive experience in litigation and trial of a broad spectrum of cases including automobile negligence, product liability, contruction liability, premises liability, general liability, and professional malpractice. The reputation of Fishman McIntyre enables the firm to obtain very favorable results on those cases that are not tried.
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Alleged negligent failure of employees of assisted living facility to assist elderly plaintiff in restroom. Fall - Severe bruising running from shoulder to hip - Cervical herniation requiring surgery - Alleged numbness in hands. Middlesex County.
This action involved a plantiff, approximately 90 years of age, who generally lived with his daughter, but who was a one-week resident at the defendant's assisted living facility during a period in which his daughter was away. The plaintiff, who used a walker, contended that when he awoke in the middle of the night and needed to use the restroom, two male attendants assisted him to the restroom without his walker and left. The plaintiff contended that as a result, he fell, suffering severe bruising from the shoulder to hip area as well as a herniated cervical disc that was superimposed on preexisting stenosis. The daughter was also a plaintiff and contended that since she was the caregiver of the father, she had standing under applicable case law.
The incident report reflected that the plaintiff had fallen in the restroom and had crawled back to his room. It also listed a small abrasion on the ankle, however, the individual preparing the report had no recollection of it. The plaintiff contended that he required a cervical laminectomy and that he continues to suffer very significant numbness in the hands which impacts on his activities of daily living.
The defendant denied that the plantiff's contentions should be accepted. The defendant maintained that although the plaintiff's father had indicated he was assisted by two males, the facility employed only one male and he was not on duty that weekend.
The jury found for the defendant. Reference: Evans vs. Marriot/Brighton Gardens Assisted Living, et al. Judge Melvin L. Gelade, 5-02. |
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$25,000 Verdict. Cracked sidewalk abutting home improvement store - Trip and fall - Head trauma resulting in losss of smell and associated diminution in taste - Fracture of bridgework. Passaic County.
The plaintiff contended that the sidewalk abutting the defendant's home improvement store was cracked, creating a height difference which resulted in her tripping and falling. The plaintiff presented the investigating officer who described an approximate one-quarter-inch height differential. The defendant argued that such a minial differential did not constitute a hazard, and the cause of the fall was the failure of the plaintiff to walk more carefully.
The plaintiff contended that she sustained a head trauma which resulted in the total loss of smell and associated severe diminution in the ability to taste. The plaintiff's neurologist contended that objective-type testing confirmed the deficit, but conceded that a portion of the scoring was made in error. The plaintiff also suffered a fracture to bridgework which had been placed in her mouth sometime earlier.
The plaintiff maintained that the defendant did not present any medical testimony and that the plaintiff's claims were unrebutted. The plaintiff had incurred $15,000 in medical costs and it was stipulated that such amount would not be presented to the jury and would be added to any award.
During deliberations, the jury requested further clarification on the issue of comparative negligence. The parties then entered into a high/low agreement of $450,000/$90,000. The jury found the defendant 100% negligent and awarded $25,000. Reference Cuadros vs. Home Depot, et al. Judge Thomas Brogan, 4-02. |
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Fall Down - Defendant's Verdict. Vendor allegedly drops packing materials in supermarket aisle - Fall Down - Fractured Hip. Union County.
The female plaintiff supermarket shopper in her late 70s contended that the defendant vendor's worker negligently dropped plastic packing material in the aisle and neglected to pick it up, resulting in her slipping and falling over the material, suffering a fractured hip.
The plaintiff testified that she first noticed the material after she had fallen while attempting to obtain a box of crackers from the shelf. The defendant denied that the plaintiff's version of the incident was accurate and maintained that the fall occurred as a result of the plaintiff's being inadvertently struck by the corner of the shopping cart being pushed by her husband at a different area of the aisle near the frozen foods approximately ten feet away from the area the plaintiff claimed the fall occurred. The vendor's representatives contended that they observed the incident occur in this other area.
The defendant also presented a surveillance tape and argued that although the tape did not depict the fall, it showed the plaintiff on the aisle floor close to the frozen foods section. The defendant also maintained that the plaintiff had reported to her treating physician that she had fallen when she backed up and tripped over a cart, which mention was contained in the physician's records. The plaintiff denied making such a statement.
The plaintiff contended that she suffered a fractured hip which necessitated hip replacement surgery and maintained that she will permanently suffer pain and restriction. Reference Colineri vs. R.J.R. Nabisco and Shop Rite. Docket No. 5203-99; Judge Rudy Coleman, 7-13-01. |
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Defendant's Verdict. False Arrest and malicious prosecution - Plaintiff allegedly conceals wine in bag from other store while in defendant supermarket. Bergen County.
The plaintiff supermarket shopper, in his 60s, contended that he was in the aisle of the defendant supermarket and had a bag from another store in his cart when the defendant's employees approached and accused him on concealing wine sole in the defendant store's liquor department in this bag. The plaintiff asserted that the wine was properly placed in his cart, and maintained that after he protested his innocence, the defendant telephoned the polive, who arrested him for shoplifting. The plaintiff contended that he was detained at the police station for approximately four hours. The plaintiff was subsequently azquitted in municipal court.
The defendant contended that it had probable cause to stop and subsequently prosecute the plaintiff. The defendant maintained that its employees had observed the concealmeant of the wine and that such an action would violate the statute, notwithstanding the fact that the plaintiff had not attempted to leave the store with the goods. The defendant contended that is offered the plaintiff the opportunity to pay for the wine with no consequence, but the plaintiff refused and became belligerent, prompting the call to the police. The arresting police officer testified that the plaintiff was belligerent and further maintained that the plaintiff was detained at the station for approximately one and a half hours and not four hours as claimed. The defendant further argued that if the plaintiff had not secreted the wine in the bag from the other store and had simply placed it in his cart as claimed, he would not have had any problem paying for it at the time the defendant's employees approached him and asked him to pay for it, rather than paying for it shortly thereafter when he would have checked out all of his items. For this reason the defendant argued that the plaintiff's factual contentions should not be accepted.
The municipal court judge had found that the plaintiff was not guilty, but that the defendant had probable cause for the stop and prosecution. The defendant argued that the jury should be apprised of the finding. The plaintiff countered that the comments by the municipal court judge regarding probable cause were gratuitous, not necessary for the findings made, and that the evidence should not be introduced in the civil case. The Court concurred with the plaintiff and excluded the evidence. The plaintiff introduced $3,250 in legal fees from the municipal court appearance. The plaintiff contended that he suffered posttraumatic stress disorder which was causing anxiety and nightmares which, the plaintiff contended, had continued up until trial.
The jury found that the defendant had probable cause for both the initial detainment and subsequent prosecution, and a defense verdict was entered.
Reference Cajkovich vs. The Great Atlantic & Pacific Tea Company, Inc. Docket No. L-005074-98; Judge Jonathan Harris, 3-01. |
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$380,000 Verdict. Plaintiff's disabled car struck by tractor-trailer on shoulder - Cervical "Hangman's" fracture - Alleged continuing restriction as well as numbness and weakness in arms - Damages only. Orange County.
The female plaintiff contended that the defendant's tractor-trailer driver negligently failed to make adequate observations, resulting in his striking the plaintiff's disabled car, which was on the shoulder a significant distance from the travel portion of the road. The defendant driver conceded that he had failed to make observations and the Court granted the plaintiff's motion for summary judgment on liability.
The plaintiff contended that she sustained a C-2 "hangman's" fracture, which the plaintiff contended caused permanent restriction of motion in the neck, some restriction in the ability to elevate her arms as well as numbness and tingling in the arms. The plaintiff's orthopedist contended that the symptoms are permanent and that the plaintiff may well require future surgery to resolve instability in the spinal column.
The defendant's orthopedist contended the MRI and x-rays showed no gross instability with flexion or extension and maintained that there was no compromise of the spinal canal. The defendant's expert maintained that the plaintiff suffered no neurological deficits.
The jury awarded $300,000 for past pain and suffering, $50,000 for future pain and suffering and $30,000 for medical expenses.
Reference Dennison vs. Wakefern Food Corp. Index No. 1169/96; Judge Joseph Owen. |
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$3,500 Verdict vs. Individual Defendant Only. Plaintiff using recreation room provided by boat marina injured as a result of alleged horseplay by marina worker - Marina denies worker in course of employment - Plaintiff allegedly strikes weight held over her face as she is doing sit-up with eyes closed - Loss of two teeth - TMJ Dysfunction - Alleged soft tissue injuries - Additur. Bergen County.
The female plaintiff, age 15 at the time, whose parents rented space at the defendant marina, was using the weight room at the defendant's premises. The plaintiff contended that as she was working out, three of the defendant marina's male workers, including the individual defendant, came into the room. The plaintiff maintained that the defendant negligently commenced horseplay by holding a weight into the path of her face as she was performing a sit up with her eyes closed.
The plaintiff maintained that the workers were on call and that their duties generally entailed maintaining the recreation room, arguing that the individual defendant was acting with the scope of his employment. The defendant marina argued that the individual involved was using the recreation room for his own purposes, was not working at the time, and contended that the incident occurred outside the scope of his employment. The individual defendant denied that the plaintiff's version was accurate. The individual defendant maintained that he was simply moving the weight and that the plaintiff negligently caused the incident by performing a sit up with her eyes closed.
The plaintiff contended that she suffered the loss of two teeth, one of which required a root canal with a post and both requiring capping. The plaintiff, who is an actress, made no income claims, but contended that she had great concerns regarding her appearance. The cosmetic result was ultimately good. The plaintiff maintained that she will require periodic replacement of the caps in the future. The plaintiff further contended that she suffered TMJ dysfunction and soft tissue cervical injuries which will cause permanent pain and restriction.
The defendants contended that the jury should consider that the plaintiff struck the steering wheel in a subsequent automobile accident, knocking out the caps. The defendant argued that any continuing TMJ or soft tissue sequela stemmed from this subsequent accident.
The plaintiff introduced medical specials in excess of $7,000 and maintained that future medical expenses will exceed $26,000.
The jury assessed 100% negligence against the individual defendant. The jury also found that the individual defendant was not acting within the scope of his employment. They then awarded $3,500. The Court subsequently held that verdict was shockingly low and granted an additur of $23,300.
Reference Reid vs. Shelter Harbor Marina Condo Assoc. and Mirth, et al. Docket No. Ber-L-2760-93; Judge Isabel Stark, 3-26-97. |
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Defendant's Verdict. Alleged negligent storage of carton on top of stand-up freezer - Entire carton allegedly falls as plaintiff attempting to retrieve one 1-lb. box of wax contained in carton - Liability only. Union County.
The female plaintiff contended that the defendant supermarket negligently stored a carton of 25 1-lb. boxes of wax on top of an approximate 7 1/2 foot high freezer. The plaintiff contended that when she reached for one box, the entire carton fell, striking her.
The plaintiff contended that after she was struck, she was bleeding and summoned for assistance. The manager testified that when he later observed the scene, several boxes were on the floor and that the carton remained on the freezer. The plaintiff contended that she replaced the carton before obtaining help and the defendant argued that this testimony was inherently implausible. The jury found for the defendant.
Reference Ciavarra vs. Franklin Shop-Rite. Docket No. L-7793-90; Judge A. Donald McKenzie, 12-15-93. |
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Defendant's Verdict. Slip and fall in supermarket - Fractured hip - Atrial fibrillation allegedly brought on by stress associated with trauma. Morris County.
The female plaintiff in her 60's contended that the defendant failed to adequately maintain the floor, resulting in the presence of a slippery "swirl" on the aisle floor that was apparently created during mopping and which caused her to fall. The plaintiff's friend, who heard the fall, rushed to her side and observed the swirl.
The defendant denied that such a swirl was present and the plaintiff contended that there was no other explanation for the fall. The defendant presented a police officer who arrived on the scene and who indicated that he did not observe such a mark on the floor.
The plaintiff suffered a fractured hip. The physicians had planned on pinning the hip. The plaintiff contended however, that she developed atrial fibrillation as a result of the stress associated with the trauma and because of a delay occasioned by the cardiac difficulties, the plaintiff required a hip replacement procedure in lieu of pinning. There was no testimony that the cardiac difficulties are permanent in nature. The plaintiff contended that the recuperation period from the hip surgery was extremely painful. The plaintiff contended that she will suffer some permanent pain and that the slight limp observed by the jury is permanent as well.
The jury found that the defendant was not negligent. During trial, the parties had entered into a high/low agreement of $75,000/$25,000 and the case settled for $25,000.
Adams vs. Shop Rite. Docket No. L-668-89; Judge Karen Russel, 2-2-94.
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Slip and fall on yogurt in supermarket aisle.Liability only.Middlesex County.The plaintiff who stopped at the defendant's supermarket after work with a fried, contended that she slipped and fell on five penny-sized drops of yogurt which were present on the aisle floor.The plaintiff contended that the substance had been present for a sufficiently long time so as to allow the defendant to observe and clean it. The plaintiff's friend, who observed the fall, indicated that she was not looking at the floor. The defendant denied any notice. The current manager, who was not the manager at the time, indicated that the area had been inspected five minutes earlier. The plaintiff challenged the basis for the witness' time estimate and the current manager indicated that he was basing his testimony on his viewing of a surveillance tape which showed the then manager, who like all employees, are trained to look at the floor, walking by the area some five minutes earlier. The court had previously ruled that the defendant could not present the videotape, which the defendant maintained did not support the plaintiff's claim as to the presence of the yogurt and which the court found was of relatively poor quality, rendering any probative value outweighed by the potential prejudicial affect. The witness also testified that on the videotape, he observed the manager look at the area shortly after the fall and shrug.The jury found that the defendant was not negligent. Reference Frank vs. A&P Docket No. L-01061-01; Judge Nicholas Stroumstsos, Jr., 1-04. |
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Responsible Attorney: Christopher E. McIntyre |
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Fall allegedly occurs at mall.Ex-girlfriend purportedly witnessing incident testifies that it occurs at location other than mall.Liability Only Hudson County
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The plaintiff, in his early 40s, contended that the defendant mall negligently left a paper flyer on the interior step.The plaintiff claimed that he was walking down the stairway with his then girlfriend when he slipped, prevented himself from falling and then walked down the stairs with her.The plaintiff, who claimed to have suffered significant leg injuries, maintained that his girlfriend then retrieved the car, they left, and by the next morning he was experiencing additional pain and swelling, prompting him to have his aunt bring him to the emergency room.The ex-girlfriend was listed as a witness, but could not initially be located. She indicated that sometime before the scheduled trial, she ran into the plaintiff's cousin and was advised of the suit, that the plaintiff intended to win a significant amount of money, and that she was listed as a witness. The girlfriend related that she then went to the mall and told the security personnel that no incident had occurred at the mall, but that the plaintiff had slipped and fallen on a sidewalk on the same day. The plaintiff presented the aunt's rebuttal testimony in which the aunt indicated that the plaintiff told her the incident occurred at the mall, and that the girlfriend, who was present, did not correct the plaintiff. The girlfriend maintained that she objected to the plaintiff regarding his plan to indicate that the incident occurred at the mall, but did not voice such objections in front of the aunt. The plaintiff also presented the cousin who allegedly ran into the ex-girlfriend and advised her of the suit, who denied having such a conversation with her. The plaintiff argued that the jury should consider that the ex-girlfriend was hostile to the plaintiff, and that her testimony should be rejected on the issue of bias. The jury specifically found that the incident had not occurred at the mall and a defense verdict was entered. Reference Corbato vs. NC Mall Assoc., et al. Docket No L-448-01; Judge Camille Kenny, 7-1-03. |
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Responsible Attorney:Christopher E.McIntyre |
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Wall at parking deck allegedly too short to comply with BOCA Code - 22-year-old decedent allegedly falls from sixth floor parking deck-suffers fatal injuries-Wrongful death
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The plaintiff contended that the 22-year-old decedent fell to his death form a wall adjoining the fifth floor of a parking deck at the defendant mall. The plaintiff maintained that the wall did not conform to the BOCA code because there was only a 30-inch distance between the concrete wheel stop and the top of the wall. The plaintiff further contended that the BOCA code required a wall of at least 42 inches. The incident occurred at approximately 1:00 a.m. on a Monday. The defendant denied that there was sufficient proof to permit the jury to consider whether the plaintiff fell from the fifth floor wall and made a motion for involuntary dismissal.
The plaintiff contended that the violation was a substantial factor in the decedent being able to sit on the wall and then fall to his death when apparently startled.
The defendant maintained that factors, including recent bizarre behavior on the part of the decedent probably reflected that the decedent entered the mall property after it closed and purposely jumped. Testimony revealed that the decedent left a book called God and The Big Bang Theory in the car with his photo and birth certificate in the book. In addition, the decedent's wallet, money and watch were found on the adjacent fourth floor roof, lending credence to this argument.
The defendant also contended that if properly measuring the height of the wall from the ground, rather than the wheel bumper, the wall complied with the 42-inch height requirement of the BOCA code.
There was no evidence of conscious pain and suffering.
The decedent was unmarried and had no children. The parents made a claim for the loss of services, companionship and guidance that would have been forthcoming from the decedent.
The court held there was inadequate evidence of causal relationship to submit the case to the jury and granted the defendant's motion for an involuntary dismissal at the close of the plaintiff's case.
Reference- Plaintiff's architect: Alexander Lisse, from Princeton Junction, NJ.
Fox vs. The Taubman Co., d/b/a/ The Mall at Short Hills, Docket No. L-2731-02; Judge John F. Malone 5-06 |
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Responsible Attorney: Christopher E. McIntyre |
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Legal malpractice - Alleged negligent failure of defendant attorney in underlying sexual assault/harassment case against former employer to seek appointment of guardian ad litem for purpose of finalizing settlement in underlying case. Plaintiff no caused by jury in underlying case following inability to finalize terms of $750,000 offer.
Essex
County
This was a legal malpractice action involving a female plaintiff who, in the underlying action, had brought a sexual assault/harassment action against her former employer in which she made allegations which included rape. The plaintiff contended that when an offer of $750,000 in three installments was made during the trial of the underlying case, she was unable to make decisions necessary to finalize the settlement, including issues relating to a confidentiality agreement and guarantees that the plaintiff would receive the installments when due. The settlement was not finalized and the jury in the underlying action returned with a finding of no cause for action. The plaintiff's legal expert contended that the defendant attorney should have realized that the plaintiff needed the appointment of a guardian ad litem for the limited purpose of finalizing the settlement and should have applied for an appointment of the mother to so act. The defendant denied that there was any basis for the judge in the underlying action to grant an application for such an appointment. The defendant also contended that the transcript of a discussion in chambers between himself, the judge and the plaintiff in the underlying case reflected that at the time, the plaintiff and her mother decided to reject the offer. The defendant argued that the plaintiff failed to establish a breach of any standard or proximate cause and moved for dismissal at the close of the plaintiff's case. The court concurred and dismissed the action.
REFERENCE Docket No.L-1449-99; Judge Thomas Brown, 9-02.
Responsible Attorney: Scott D. Samansky |
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Professional negligence - Legal malpractice - Alleged negligent failure of plaintiff's attorney in underlying red light/green light intersection collision case to adequately detail plaintiff's position regarding times and distances from traffic light. Plaintiff found 50% comparatively negligent in the prior trial of underlying action, allegedly as a result of defendant's negligence. Liability only.
Essex County,
New Jersey
This was a legal malpractice action involving an underlying plaintiff who was found 50% comparatively negligent in the prior red light/green light intersection collision jury trial. The plaintiff contended that the defendant attorney did not discuss the distance from the intersection when the turn arrow light changed green and that as a result, the underlying defense counsel was able to utilize this omission to perform mathematical calculations to reflect that based upon speed and distance, the plaintiff would have proceeded through a red light. The plaintiff contended that her attorney, the defendant in this case, had incorrectly placed her twice as far from the intersection when the light turned to a full green, contrary to her deposition testimony and interrogatory answers. There was no eyewitness testimony as to the happening of the accident in the underlying trial, and the plaintiff contended that a particularly complete explanation of her description was, therefore, especially necessary. The plaintiff argued that if the defendant attorney had fully explained her description to the jury, they probably would have assessed a lower percentage of comparative negligence. The defendant contended that the case was properly presented and denied that there was any evidence from which a jury in this malpractice action should find that any different presentation in the underlying action would have impacted on that jury. The defendant attorney maintained that he had made a conscious decision not to elicit the 100-foot testimony from his client. The plaintiff argued that the defendant attorney had not made such a decision. The judge in this legal malpractice case directed a verdict in the plaintiff's favor on two of three contentions of negligence, finding that the attorney's statements in summation as to her speed and distance at 200 feet were negligent as a matter of law. The jury found for the defendant on the issue of proximate cause.
REFERENCE Plaintiff's expert attorney: Anthony Abrosio from
Belleville, N.J. Defendant's expert attorney: Richard A. Amdur from
Eatontown,
N.J. Plt: Cobb. Docket L-2464-97; Judge Edith Payne, 12-30-01.
Attorney for plaintiff: Marc E. Lesser in
Roseland,
N.J. Responsible Attorney: Scott D. Samansky |
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In favor of third-party defendant in subsequent third-party action $150,000 recovery
Negligent failure to clear room before testing sprinkler system. Explosion. Pipe strikes wall causing extremely loud noise. Significant bilateral hearing loss. Explosion allegedly caused by defectively manufactured coupling.
Mercer County,
New Jersey
This was an action involving a plaintiff electrician in his mid-50s who was performing work in a small room of an office building nearing completion. At the time of the incident in question, a test of the sprinkler system was conducted by the defendant sprinkler installation company. The plaintiff was not employed by the defendant and was involved in different work. The plaintiff contended that during the test, an explosion occurred, propelling a pipe against an adjacent wall. The plaintiff was not struck by the pipe. However, the plaintiff maintained that the extremely loud noise caused a significant hearing loss and tinnitus which is permanent in nature. The plaintiff had contended that irrespective of the cause of the failure, the defendant was negligent in failing to clear the room before the test was conducted. The defendant questioned the extent of the hearing loss caused by the incident, contending that although the audiology testing showed some deficits, there were no prior tests with which to make a comparison. The plaintiff contended that he had no prior hearing difficulties. The plaintiff's case against the defendant sprinkler installation company settled prior to trial. The defendant sprinkler installation company brought a third-party action against the manufacturer of a coupling used in the sprinkler system and maintained that the coupling was defectively manufactured, causing the explosion. The defendant contended that a vein of rust was noted on the coupling after the explosion. The defendant contended that the failure of the coupling would not have occurred unless it was defectively manufactured and that the vein of rust reflected such a defect. The third-party defendant denied that the coupling was defective or that the vein of rust was significant. The third-party defendant contended that the malfunction occurred as a result of improper installation. The sprinkler installation company settled with the plaintiff during trial for $150,000. The jury found that the defendant/third-party plaintiff had not proven that the coupling was defective and a no-cause verdict was entered on the third-party action against the manufacturer.
REFERENCE Laurendeau vs. Meadowlands Fire Protection Co. vs. Victaulic Company of America, et al. Docket no. L-4597-96; Judge Jane Grall, 6-01. Responsible Attorney: Scott D. Samansky |
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Legal Malpractice - Alleged negligent failure of attorney to advise condo association of claim for property damage before condo association takes control from developer and executes indemnification and hold harmless agreement in favor of developer.
Bergen
County
The plaintiff condominium association, comprised of condo owners, contended that the defendant attorney, who represented it in its dealings with the developer while it took control from the developer and in conjunction with typical transactions of this nature, executed a release, indemnification and hold harmless agreement in favor of the developer, negligently failed to ascertain the existence of a substantial property damage claim against the developer that was outstanding. The plaintiff maintained that as a result, it was liable for this claim. The defendant contended that he had a limited role, was only asked to forward the documents to the prior non-party attorney and denied that he had breached any duty. The defendant also argued that the underlying claim was a subrogation suit authorized by the plaintiff association and that it should have known about this claim. The plaintiff countered that at the time the association was substantially made up of prior owners and the plaintiffs did not have knowledge. The defendant established that one owner was a member at the time the prior claim had been made against the developer and argued that the association had notice without any advisements by counsel. The case was tried before the Court. The Court held that the defendant was not negligent. The plaintiff has filed an appeal.
REFERENCE Plt: Cross Creek Condo Assn. Docket no. L-5414-95; Judge Martin L. Kole, 1-99.
Responsible Attorney: Scott D. Samansky |
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Slip and fall on ice and snow in store parking lot. Alleged inadequate access for pedestrian traffic. Liability only
Hudson
County
The male plaintiff in his early 40's contended that the defendant negligently failed to adequately clear ice and snow from its parking lot, resulting in his tripping and falling. The defendant maintained that the driveway leading to the parking lot was cleared and that the plaintiff chose to cross over the median area, causing the accident. The plaintiff maintained that there was no direct pedestrian walkway to the parking lot and that it was safer to walk on the median than to go to the cleared opening. The defendant also elicited testimony from the plaintiff that the median was the shorter route and the defendant argued that the plaintiff placed expediency above his own safety. The jury found that the defendant was not negligent.
REFERENCE Perez vs. The Sports Authority. Docket no. L-3633-96; Judge James W. Taylor, 4-99. Attorney for plaintiff: Marvin Walden of Greenberg & Walden in West New York Responsible Attorney: Scott D. Samansky |
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Morrissey v. Value City Atlantic County
Fall down escalator which allegedly stopped.
The female plaintiff contended defendant store and service company negligently failed to maintain an escalator whereby it suddenly stopped causing plaintiff to fall forward and suffer a variety of injuries. Defendants demonstrated plaintiffs engineers opinion as to the cause of the stoppage was inconclusive. The jury found the defendants were not negligent. Responsible Attorney: Scott D. Samansky |
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Supreme Court of New Jersey - Appeal
Denise Sciarrotta, et al v. Global Spectrum, et al A-28-07
Argued by Scott D. Samansky February 20, 2008
Decided April 10, 2008
Rivera-Soto, J. writing for a majority of the Court
Syllabus This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.
In this appeal, the Court examines the limited duty rule, which applies to sports venues and addressed the peril of objects leaving the field of play that may injure spectators. According to the limited rule, a sports venue owner or operator has satisfied its duty of care to spectators if it provides a screened seating that is sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion and if the owner or operator also provides protection in the most dangerous sections of the stands. The Court then considers whether the limited duty rule applies to practice or "warm-up" periods that occur before a game is actually played, and whether there is a duty to warn spectators about the risk of objects leaving the field of play.
On January 4, 2003, Denise Sciarrotta attended a professional hockey game between the Trenton Thunder and the Jonestown Chiefs at the Sovereign Bank Arena in Trenton. Her seat in the stands was six or seven rows from the ice and above the Plexiglas protective barrier mounted on the side boards that surround the rink. She also was outside the areas of the rink surrounding the goals that are protected by netting that extends above the Plexiglas. During the warm-up period, when each team had as many as twenty-five pucks in use, an unidentified player took a practice shot at the goal. His puck struck a goalpost and caromed above the Plexiglas, injuring Sciarrotta. Sciarrotta filed this action alleging negligence by Global Spectrum, Comcast Spectator Co., Trenton Hockey Club, LLC the Trenton Titans, the Johnstown Chiefs, and the East Coast Hockey League, Inc., among others, either as the operators of the arena or as the owners, operators, or responsible parties for the teams playing on the ice that night.
The trial court granted a motion for summary judgment by the defendants, finding that they had fulfilled their obligations under the limited duty rule because the arena provided protective seating for spectators who might reasonably have requested it and because Sciarrotta presented no evidence to create a genuine issue of material fact as to whether the operators provided protection for spectators in the most dangerous sections of the stands.
Based on the differences between the activities that occurred during warm-ups and games, the Appellate Division reversed, concluding that there were questions of fact to be determined as to whether more adequately protective steps were available and should have been taken to minimize the risk of harm from a specific activity at issue. 392 N.J.Super. 403 (2007).
HELD: The limited duty rule, which concerns the provision of screened seating in certain areas of sports venues, applies to all activities on the field of play, including pre-game warm-ups. If a sports venue owner or operator complies with the limited duty rule, it has satisfied its duty of care to patrons in the stands and no action in negligence will lie for the peril of objects leaving the field of play. Furthermore, the limited duty rule does not impose a separate duty to warn of the risk of objects leaving the field of play.
1. The limited duty rule applies to sports venues in respect of a specific peril, that of objects leaving the field of play that may injure spectators in the stands. Under the rule, a sports venue owner or operator that provides screened seating (1) sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion, and (2) in the most dangerous section of the stands, has satisfied its duty of care. The rule applies not only while the game itself is in progress, but whenever spectators are located in the stands. (Pp 10-11).
2. In Schneider v. Am. Hockey & Ice Skating Ctr., Inc., 342 N.J.Super. 527 (App.Div.) certif. denied, 170 N.J. 387 (2001), The Appellate Division held that a hockey rink operator has a limited duty to provide a protected area for spectators who choose not to be exposed to the risk posed by flying pucks and to screen any spectator area that is subject to a high risk of injury from flying pucks-a duty which may be satisfied by the provision of screened seats behind the goals. The Appellate Division then rejected the plaintiff's negligence claim because, among other reasons, no evidence was offered that the unprotected seats at the side of the rink posed an unduly high risk of injury from flying pucks. Here, it is undisputed that Sciarrotta was seated in an area on the side of the rink that was not within the corners or end zones. As such, the area was protected by the side boards topped by Plexiglas but not by protective netting. Sciarrotta's seat was above the Plexiglas partition and she did not request a seat behind the protective netting. The facts of this matter present a textbook case for the application of the limited duty rule. (Pp.11-13).
3. The Court rejects Sciarrotta's argument that her situation should be exempt from the application of the limited duty rule because she was injured during warm-ups when multiple pucks are on the ice, rather than during a game when only one puck is on the ice. Although this Court geographically restricted the scope of the limited duty rule in Maisonave v. Newark Bears Prof'l Baseball Club, Inc., 185 N.J. 70 (2005), by limiting its application to injuries to spectators that occur in the stands, that restriction was rejected by the Legislature in the New Jersey Baseball Spectator Safety Act of 2006. In the same statue, the Legislature also defined a professional baseball game as including pre-game activities. Therefore, the Court sees no reason to restrict the scope of the limited duty rule solely to the temporal limits of the game itself. The purpose of our tort laws is to encourage reasonable conduct and, conversely, to discourage conduct that creates an unreasonable risk of injury to others. The reasonable conduct to be encouraged here underlies the limited duty rule itself; added protection for those who are reasonably anticipated to request it as well as for those who, absent a request, nevertheless are located in an area of particular and enhanced danger. That standard of reasonableness cannot be transformed into some other, different standard simply because the game itself has not yet started, has started but play is not immediately developing, or has recently ended. The Court reaffirms that, in respect of the peril from objects leaving the field of play, the limited duty rule sets forth the standard of care professional ice hockey rink owners or operators owe to spectators when they are located in the stands, regardless of the goings-on within the ice rink (Pp 13-17).
4. Finally, the Court rejects Sciarrotta's argument that the defendant had a duty to warn her of the peril of pucks leaving the ice rink so that she could make an informed decision as to whether to assume that risk. The imposition of different duties of care for the same peril in the same location would confound the core purposes of tort laws. (Pp 17-20).
The judgment of the Appellate Division is Reversed, and the judgment of the Law Division dismissing plaintiff's complaint with prejudice is Reinstated.
Justice Long, file a separate Dissenting opinion, in which Justices Albin and Wallace join, asserting that a posted warning advising of the danger of flying pucks and of the right to requested protected seating is in full conformity with our prior jurisprudence on the subject of duty and is an essential element of the limited duty rule.
Chief Justice Rabner and Justices LaVecchia and Hoens join in Justice River-Soto's opinion. Justice Long filed a separate dissenting opinion in which Justices Albin and Wallace join. |
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Defendant's Verdict
Alleged four foot by four foot puddle in floral aisle of supermarket - Plaintiff claims she slips while pushing shopping cart and does not fall - alleged tears to knee and shoulder. Bergen County
The plaintiff, supermarket shopper in her mid 50s, contended that, as she was wheeling her shopping cart in the floral aisle, she slipped on an approximate four foot by four foot puddle of water. The plaintiff indicated that she did not fall. The plaintiff maintained that she suffered a tear to the medial meniscus of the left knee and a left shoulder tear.
The defendant presented an employee who testified that she had watered the plant a few minutes earlier and noticed that an approximate six inch spot was wet. The employee maintained that she placed a wet floor sign over the area, went to retrieve the mop and bucket and that she heard the plaintiff yell that she slipped. The defendant's employee contended that the small puddle she noticed when she was watering the plant and over which she had placed the sign, was the only puddle present.
The plaintiff's orthopedist maintained that the injuries are permanent in nature and that arthroscopic surgery had been recommended. The plaintiff did not undergo the surgery. The plaintiff had denied prior knee or shoulder complaints and the defendant confronted her with records reflecting that she had undergone physical therapy for both knees approximately four months earlier and had received an injection for left shoulder pain approximately one year before the incident.
The jury found that the defendant was not negligent. Reference Clark v. The Great Atlantic & Pacific Tear Co. Docket No. BER-L-3931-05; Judge Joseph Conte, 9-07. Attorney Christopher E. McIntyre
Defendant's Verdict
Premises Liability - Alleged dangerous parking deck stairway at defendant mall - Alleged absence of adequate visual cues - Plaintiff patron trips and falls after encountering "step", characterized by defendant as curb, immediately beyond concrete base at bottom of stairway - Fractured right knee and torn right rotator cuff - Liability only. Essex County.
The parties had stipulated gross damages of $75,000 in this case which was then tried on liability only. The plaintiff contended that the bottom of the parking deck was dangerous because within five feet of the apparent last step, was another step, over which she tripped. The plaintiff contended that the defendant should have extended the handrail. The plaintiff also maintained that the visual cues were not adequate. The plaintiff's expert asserted that the parking deck stairway should have been designed in a manner that there was a recued ceiling height towards the bottom which would tend to make patrons look downwards.
The defendant denied that the plaintiff tripped over a "step". The defendant maintained that she fell over a curb that was situated directly beyond the concrete base at the end of the stairway. A mall roadway was beyond the curb. The defendant's engineer maintained that yellow paint on the curb and roadway arrows for vehicles constituted adequate visual cues. The defense expert also denied that any code provision relating to stairways were applicable.
The jury found five to one that the defendant was not negligent. Reference McHenry v. The Mall at Short Hills, Docket No. ESX-L-5722-05; Judge Claude Coleman, 10-08. Attorney Christopher E. McIntyre
Defendant's Verdict
Alleged negligent maintenance of supermarket parking lot - Plaintiff bicyclist allegedly strikes depression and falls from bike - Liability Only. Middlesex County
The female plaintiff bicyclist in her 30s contended that an approximately 40 foot long, two inch wide and one inch deep depression was present in the area where two portions of the asphalt lot met. The plaintiff's engineer contended that this depression created a hazard which the plaintiff maintained resulted in the tire of her bike stopping short, propelling her to the ground.
The defendant contended that the alleged defect only constituted a seam which was created more than ten years earlier in conjunction with the paving process and the defendant's supermarket and shopping center owner denied that it constituted a hazard. The Statute of Repose, precluding an action against a contractor for alleged defects created more than ten years before an accident, applied and the contractor's motion for dismissal was granted at the close of the plaintiff's case. The defendant's engineer maintained that the seam was not sufficiently wide or deep to cause the bike to stop short. The defendant also questioned whether the accident occurred, pointing to the absence of a report at the scene and the inability of the plaintiff to identify the individual who purportedly assisted her at the scene and drove her home.
The jury found for the defendants. Reference Hannah v. Shop-Rite of Carteret and JLJ Assoc., et al. Docket No. MID-L-4885-90; Judge Lawrence Lerner, 5-6-93. Attorney Stanley P. Fishman
Defendant's Judgment
Plaintiff trips and falls on wire hanger situated on asphalt outside pick-up department at premises of defendant store - Partial ACL tear - Chip fracture of radial phalanx. Essex County
The female plaintiff in her mid-40s contended that the defendant department store negligently failed to adequately inspect and maintain the area outside of its pick-up department. The plaintiff contended that a wire hanger from the defendant's store was dropped onto the asphalt and what as a result of the alleged negligent failure to conduct adequate inspections, she tripped and fell over the hanger, suffering a partial ACL tear and a chip fracture to the radial phalanx.
The defendant questioned whether the hanger came from its store, pointing to evidence that it was twisted in such a manner that it appeared to have been used to open a car door. The defendant further denied that it had any notice of the presence of the hanger, which was described by the plaintiff as dark in color and meshing to some degree with the color of the asphalt.
The court found as a matter of law that the plaintiff had not established notice and dismissed the action at the close of plaintiff's case. Reference Whitehead v. Taubman Company. Docket No. ESX-L-003723-02; 1-04 Attorney Christopher E. McIntyre
Defendant's Verdict
Alleged dangerous exit at roller skating rink - Fall down - Shoulder Fracture - Liability Only. Ocean County
Gross damages were stipulated at $65,000 in this case, in which the plaintiff, in her early 60s, tripped and fell, suffering a fractured shoulder when she was exiting the defendant's Jackson Skating Center, premises. The plaintiff, who was to attend a birthday party, initially parked in a loading zone because the lot appeared to be full. She went in to ask where she could park and fell as she was exiting. The plaintiff maintained that although the facing on the step which she could see on her way into the premises was painted yellow, the top was not, and that she forgot that the step down was present as she was walking out.
The plaintiff's engineer maintained that the step-down was a dangerous condition wand was not sufficiently marked. The defendant's engineer contended that the premises were properly marked and were safe. The expert contended that the color of the floor beyond the step-down was different, addition to the visual cues. The defendant's expert also pointed out that several, nine inch by six inch, signs, advising of the step-down were present. The plaintiff maintained that her view of the signs was obstructed by other patrons. As a part of the stipulation, the plaintiff was permitted to tell the jury that she sustained a fractured shoulder and knee contusion. No other damages' evidence was admitted.
The jury found that the defendant was not negligent. Reference Zirin v. Jackson Skating Center, Inc. Docket No. OCN-L-2838-05; Judge Thomas E. O'Brien, 9-07 Attorney Christopher E. McIntyre |
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Premises Liability/Construction/Toxic Torts/Punitive Damages
The firm was retained to represent Soho House, an exclusive "members only" hotel in the Manhattan meat packing district. During the conversion of the upper floors of the building from a warehouse to the hotel, a health spa was installed on the lower floor of the hotel; one floor above a high end furniture retailer - Vitra. During the construction of the spa and subsequent to the opening thereof, substantial water leaks occurred into the space below occupied by Vitra. While many of the leaks resulted in damage to much of Vitra's showroom, including furniture, several leaks occurred behind the walls and under the floors, eventually resulting in significant mold growth throughout various portions of Vitra's space.
Vitra brought suit against Soho House claiming a host of legal theories, including gross negligence and the creation of a nuisance. Vitra further claimed that shortly after the initial leaks, it pleaded with Soho House to cease it operations and undertake additional waterproofing measures; allegedly to no avail. Consequently, Vitra sought millions in punitive damages. Moreover, Vitra filed multiple Orders to Show Cause to attempt shut down Soho House's operations, each of which were successfully defeated by our office.
Vitra further claimed approximately $500,000.00 in past and future loss of business as a result of the leaks.
In motions made on behalf of Soho House during the pendency of the case, we were able to convince the Court to dismiss Vitra's loss of business claims. Additionally, we successfully secured summary judgment dismissing Vitra's multimillion dollar punitive damages claims against Soho House. A copy of the Court's decision can be viewed at:
http://decisions.court.state.ny.us/SCAS_docs/2007OCT/3001182592003017SCIV.pdf
Vitra appealed to the Appellate Division, Second Department. In a decision rendered in April, 2008, the Appellate Division upheld the dismissal of Vitra’s punitive damages claims. A copy of the Court's decision can be viewed at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_03713.htm
The remaining claims of damages of Vitra were ultimately resolved, with Soho House securing significant contribution from various contractors we had brought into the case as third-parties.
Vitra, Inc. v. Soho House, LLC, et als., Supreme Court, New York County, Index No. 118259/03; Justice Ling-Cohen. Attorney: Mitchell B. Levine
Premises Liability/Slip And Fall
We were retained to represent a national janitorial contractor for Sears department store at a Sears located in Suffolk County, New York.
The Plaintiff claimed that she sustained significant personal injuries when she was caused to slip and fall on water on the floor several feet into the store. Plaintiff claimed at the time of the accident, and for several hours thereto, it was raining.
Pretrial discovery revealed that our client, Control Building Services, Inc., one of the nation's largest janitorial firms, did not have sufficient legal notice of the condition as alleged by Plaintiff to incur liability. Discovery revealed that an employee of Control had last been in the area approximately 30 minutes prior to Plaintiff's fall and that no wetness was detected at that time. Discovery further revealed the lack of any notification made on the part of Sears to Control to dry the area in the interval. Thus, while the Court did not grant summary judgment to Sears, Control Building Services' motion for summary judgment was granted, and the case dismissed against it. A copy of the Court's decision can be viewed at:
http://decisions.court.state.ny.us/SCAS_docs/2007MAY/5100048472004/SCIV.pdf
Anagnostopoulos v. Sears Roebuck and Co., et als., Supreme Court, Suffolk County, Index No. 4840/04; Justice Doyle. Attorney: Mitchell B. Levine
Premises Liability/Construction Defect
We were retained by an insurance company to represent a general contractor, Michael J. Fitzgerald Contracting Co., to represent it in connection with a claim asserted by a Deacon at a Church located in Pawling, New York. The Plaintiff claimed that he tripped and fell on an approximate one and one half inch height differential between two adjacent slabs of concrete. Plaintiff's injuries were substantial and included fractures of the neck resulting in immobilization of the cervical spine for several months. The Plaintiff sued both the Church and our client claiming negligence in the original construction of the walkway upon where he fell, and in the Defendants' alleged failure to maintain the area.
The contractor had constructed the walkway nearly five years prior to Plaintiff's accident. Upon completion of the work, the same was accepted by the Church, and a Certificate of Occupancy was issued by the Township Building Department. However, approximately 18 months after the work was completed, the defect was first noticed.
Summary judgment was successfully secured on behalf of the contractor as we were able to demonstrate that the defect was not a result of any faulty construction or workmanship on the part of the insured, but rather, due to unrelated causes. Moreover, despite contention by the Co-Defendant, the Church, that there was an issue as to whether the defect complained of actually first presented itself in the one year following completion of the project (the insured gave the Church a one-year warranty against defects) we were able to convince the Court that such contentions were speculative. Consequently, summary judgment, dismissing the Plaintiff's Complaint against the insured, as well as the Church's cross-claims, was secured.
Tobin v. St. John's Roman Catholic Church and Michael J. Fitzgerald Contracting Co., Supreme Court, Dutchess County, Index No. 5558/2005; Judge Brands. Attorney: Mitchell B. Levine
Premises Liability/Construction/Labor Law/Traumatic Brain Injury
The firm served as co-counsel in a damages only trial in the Supreme Court, Bronx County in connection with a man who alleged a traumatic brain injury, as well as a host of severe orthopedic injuries, following a 30 foot fall at a construction site.
Plaintiff alleged that as a result of the fall he sustained brain shearing, resulting in a traumatic brain injury, including cognitive defects, behavioral defects, personality disorder and a host of other symptoms, including difficulty concentrating and sleeping. Plaintiff, a 23 year old bricklayer at the time of the accident, claimed an inability to work in the construction field due to his orthopedic injuries, as well any other vocation as a result of his alleged cognitive defects. Orthopedically, Plaintiff sustained a cervical spine fracture, three fractures to the thoracic spine as well as an "amputated" fracture to the iliac crest of the pelvis. Due to the fractures, Plaintiff claimed an inability to bend or lift, and claimed that the pelvis fracture did not heal properly, resulting in difficulty walking and balance problems. Plaintiff also sustained a large, disfiguring serpentine scar on his low back.
The case was tried over three weeks in January 2009. Plaintiff called approximately 14 witnesses, including 11 experts such as neurologists, a neuropsychologist, an orthopedist, a vocational rehabilitation expert, an economist and an accountant. Plaintiff's experts opined that his economic loss (lost wages and benefits) totaled $8,800,000.00. Plaintiff's experts further opined that Plaintiff's future medical costs were in excess of $4,000,000.00. Plaintiff further claimed nearly 50 years of future pain and suffering, in addition to an approximate four year pretrial claim of pain and suffering.
After deliberating for two days, the jury awarded Plaintiff approximately $1,100,000.00 for both past and future lost wages, which was approximately $400,000.00 less than our own experts had opined Plaintiff's economic loss to be! Moreover, the jury awarded Plaintiff only $600,000.00 for future medical costs, which again was less than what our own expert opined as Plaintiff's minimum future medical care. Finally, for past (approximately four years) and future (approximately 50 years) pain and suffering, Plaintiff's counsel asked the jury for awards of $750,000.00 and $2,500,000.00, respectively. We recommended to the jury a total, for both past and future pain and suffering, of $300,000.00. The jury awarded the Plaintiff $124,000.00 for past pain and suffering and $150,000.00 for future pain and suffering; virtually what we had asked the jury to award.
Magee v. 438 East 117th Street Realty, et als., Supreme Court, Bronx County, Index No. 20708/05; Judge Green. Attorney: Mitchell B. Levine.
Motor Vehicle
We were retained by Coach Bus to represent it in connection with a personal injury lawsuit brought by a passenger on the insured's bus who claimed injuries when the bus collided with another vehicle.
We successfully secured summary judgment on behalf of the bus by establishing that the accident was the sole result of the other vehicle in following too closely, despite opposition by the Co-Defendant driver. A copy of the Court's decision can be viewed at:
http://decisions.court.state.ny.us/SCAS_docs/2008MAY/3001190072006001/SCIV.pdf
Riedewald v. Hudson Transit Lines, et al., Supreme Court, New York County, Index No. 119007/06; Judge Kaplan. Attorney: Mitchell B. Levine
Design Defect/Pedestrian Knockdown
We were retained by an insurance company to represent The City of Yonkers and a general contractor, WBP Central Associates, to defend them with respect to severe injuries (a fractured leg and pelvis) sustained by a pedestrian while attempting to cross the street who was struck by a motor vehicle owned and operated by a Co-Defendant.
At the time of Plaintiff's accident, the contractor was in the midst of constructing a strip mall at the corner of a major intersection. Plaintiff claimed he attempted to cross the intersection within the crosswalk. With respect to allegations against The City of Yonkers, Plaintiff claimed that the timing of the traffic light was either set incorrectly, or set in such a manner as to provide insufficient time for a pedestrian to safely cross the four lanes of traffic.
With respect to the contractor, the Plaintiff claimed that in redesigning the intersection as part of the overall construction, it had turned the power off to the "walk/don't walk" sign, preventing Plaintiff from properly and timely crossing the street.
During discovery we were able to elicit from the Plaintiff certain admissions, as well as locate an eyewitness, which confirmed that when Plaintiff attempted to cross the street, he was actually approximately 15 feet outside of the crosswalk. We were therefore able to convince the Court that there was no causation between any design and/or construction defect, and Plaintiff's accident, as any reliance by Plaintiff upon the "walk/don't walk" sign was immaterial. We were further able to convince the Court that to the extent that any liability existed, it was solely on the part of the driver who struck the Plaintiff. As a result all claims were dismissed against our clients.
Lulgjuraj v. The City of Yonkers, et als., Supreme Court, Westchester County, Index No. 10197/04; Justice Donovan. Attorney: Mitchell B. Levine
Premises Liability/Construction/Labor Law/Insurance Coverage
We were retained by a Third-Party Administrator to represent a general contractor with respect to an addition being constructed by the contractor, which hired the Plaintiff's employer for the purposes building an elevated exterior deck as part of the construction. While in the midst of construction, the Plaintiff, a laborer, fell off the ladder he was working upon, falling 15 feet to the ground.
Plaintiff brought suit against the insured alleging various causes of action, including violations of New York’s Labor Law. In turn, we brought suit against Plaintiff's employer seeking contractual indemnification. While the claims between the Plaintiff and the insured were eventually settled, the trial court denied our motion for summary judgment for defense and indemnification against the Plaintiff's employer, finding that the provision of the contract between the insured and Plaintiff's employer providing for indemnification to be "ambiguous."
We filed an appeal with the Appellate Division, Second Department. Following oral argument, the Appellate Division reversed the trial court and ordered that Plaintiff's employer indemnify our client not only for the amount paid to the Plaintiff in settlement of Plaintiff's claim, but for all attorneys' fees and costs incurred by our client in defense of the action. A copy of the Appellate Division's decision can be viewed at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_03713.htm
However, it was ultimately determined that Plaintiff's employer did not have insurance coverage in effect at the time of Plaintiff's accident to cover the claim, including the indemnification obligation. Fortunately, however, at the time the initial demand for defense and indemnification was made to the Plaintiff's employer, a demand was also made to the Plaintiff employer's worker's compensation carrier; generally known as"1(B)"coverage. 1(B) coverage generally becomes primary, casualty coverage, where there is no effective primary coverage, as was the case here. Despite the fact that the workers' compensation carrier only provided worker's compensation coverage, when it as initially notified of our insured's claim, it failed to disclaim coverage. Consequently, the compensation carrier's attempt to disclaim coverage well over a year after it had been put on notice was ineffective. As a result, we were able to return for our carrier the majority of the monies it paid in settlement and attorneys' fees/costs.
Arguetta v. Pomona Panorama Estates, Ltd., et als., Supreme Court, Rockland County, Index No. 764/04; Justices Weiner and Nelson. Attorney: Mitchell B. Levine
Motor Vehicle/Punitive Damages
We were retained by a Third-Party Administrator to represent a well known "hip hop" music artist, who was alleged to have intentionally run down the Plaintiff, while the Plaintiff was in an intersection riding a bicycle. Plaintiff sustained various personal injuries, but claimed entitlement to punitive damages against our client for allegedly purposefully and intentionally knocking down the Plaintiff with her Rolls Royce.
Although subject to a Confidentiality Order, we satisfactorily resolved the claim, including the punitive damages claim assessed against our client, for a nominal amount and substantially less than it would have cost to merely try the case.
Supreme Court, Kings County. Attorney: Mitchell B. Levine
Premises Liability/Fall Down/Insurance Coverage
The firm was retained by the owner of a laundromat to represent it in connection with a fall down which occurred within the laundromat leading to a premises liability lawsuit being filed against it in the Supreme Court of New York, Bronx County.
Our client learned of Plaintiff's accident on the day thereof. However, due to the nature of the accident, the client did not believe his company faced liability for the accident. Thus, the client did not report it to his insurance carrier until three months later, when our client was served with a Complaint in the Bronx County action. The insurance company disclaimed coverage, contending our client did not timely notify it of the occurrence.
On behalf of the client, we filed a declaratory judgment action against the insurance carrier seeking coverage, including indemnification for the claimant's underlying loss. Following discovery, the case was tried in United States District Court, Southern District of New York, before United States District Judge Baer in May 2008. Following trial, Judge Baer issued a written decision finding in favor of our client and obligating the insurance company to provide a defense and indemnification in the underlying action to the laundromat.
The Court's decision can be viewed at:
https://ecf.nysd.uscourts.gov/doc1/12715126686
Superlaundryland, Inc. v. U.S. Underwriters Insurance Company, United States District Court, Southern District of New York, Docket No. 07-cv-2319 (HB); Judge Baer. Attorney: Mitchell B. Levine
Premises Liability/Construction Defect
The firm was retained by Highlands Insurance Company to represent a general contractor, VRD Construction Company, with respect to a fall down which occurred on Westchester Avenue in the Bronx, New York. Plaintiff claimed that her fall was a result of a portion of the street being in disrepair.
During discovery, we elicited admissions from the Plaintiff with respect to the precise spot in which she fell and the precise nature of the defect. These admissions foreclosed the possibility that our client, which had repaved other portions of the street around the time of the Plaintiff's accident, was responsible for the defect complained of by the Plaintiff. We were able to convince the Court that Plaintiff's claim (that the defect arose out of our client's general work in the area) was too speculative to proximately link such work with the specific defect claimed by the Plaintiff. Despite vigorous opposition to the motion for summary judgment by Plaintiff, as well as opposition by other parties in the case (other contractors and the City of New York), the Court agreed with our position and dismissed all claims against our client.
Rodriguez v. The City of New York, et als., Supreme Court, Bronx County, Index No. 29934/02; Justice Schachner. Attorney: Mitchell B. Levine
Premises Liability/Construction Defect
The firm was retained by an insurance company to represent Manetta Industries, a public works contractor.
The Plaintiff claimed that she tripped and fell while traversing Court Street, in front of the Kings County Courthouse, claiming that the crosswalk was in "disrepair" and was pocked with potholes and other defects. Although Plaintiff sued various entities, including the City of New York, Plaintiff's discovery focus was upon our client since according to the Plaintiff, at the time of her accident she noticed machinery with our client's name inscribed across the street from where she fell.
Our client was, in fact, performing repairs to the crosswalk "catty-corner" to the crosswalk in which Plaintiff fell at the time of her accident.
The proof in discovery revealed that our client, at the time of Plaintiff's accident, had yet to commence any repairs to the crosswalk in which Plaintiff fell. Additionally, our investigation revealed that while the City of New York had authorized our client to commence the repairs, it was directed that the work not actually start until two days after Plaintiff's accident. We were able to convince the Court that notwithstanding the fact that our client’s work to the crosswalk at issue was considered "pending", until such work actually commenced, our client did not have an obligation to the Plaintiff, and also did not have a duty to warn of any dangers since it had not legally assumed control over the area. We were further able to demonstrate that Plaintiff could not prove any reliance upon our client to warn of the danger or otherwise protect the area. The Court agreed with our position following oral argument (which lasted approximately 90 minutes). Consequently, the case against our client was dismissed.
Rosenstein v. Consolidated Edison, et als., Supreme Court, Kings County, Index No. 26245/03; Justice Hurkin-Torres. Attorney: Mitchell B. Levine
Premises Liability/Construction Accident/Labor Law
We were retained by a Third-Party Administrator to represent The Carlton Hotel in Manhattan. At the time of Plaintiff's accident, the Hotel was undergoing major renovations to the lobby. The Hotel hired a general contractor, which in turn hired various subcontractors, to perform the renovation. An employee of one of the subcontractors was injured while walking along the edge of a piece of sheetrock which was being used as a barricade over an open area to the basement.
Plaintiff argued that he was using the sheetrock as a platform or passageway; we argued that sheetrock was not intended as such and that Plaintiff was simply seeking a "shortcut". We further argued that the nature of the sheetrock was clearly and solely as a barricade; not a means of passage.
We filed a motion for summary judgment seeking to dismiss Plaintiff's various Labor Law causes of action. Incredibly, the Court granted most, but not all, of the relief we sought, leaving one claim open, that under the "scaffold law."
We immediately filed a notice of appeal. However, while the appeal was pending, the case came up for trial. We refused to contribute towards any potential settlement, insisting that we would prevail before the jury or the Appellate Court. However, at the commencement of jury selection, and at our urging, Plaintiff agreed to dismiss the remaining claim against our client.
Lynn v. Madison Real Estate Associates, et als., Supreme Court, New York County, Index No. 120218/03; Justice Smith. Attorney: Mitchell B. Levine
Premises Liability/Slip And Fall
We were retained by a risk retention group to represent one of its member's supermarkets in connection with a fall down on water at a Food Town Supermarket.
Plaintiff claimed she sustained various soft tissue injuries to her neck, low back and knees.
Discovery revealed that water on the floor was caused by an employee of the supermarket mopping near where Plaintiff fell. However, Plaintiff conceded at her deposition that she had seen a porter mopping in "the vicinity" where Plaintiff fell prior to her fall.
The case was tried. In addition to the aforesaid liability arguments and obvious comparative negligence on the part of the Plaintiff, we argued that Plaintiff's injuries were pre-existing and degenerative, and that at most, she sustained an exacerbation of the same.
The verdict clearly reflected our arguments with Plaintiff receiving an award of merely $9,600.00, reduced to $4,800.00 in light of the finding of 50% comparative negligence on the part of the Plaintiff.
Garcia v. Livingston Food Corporation d/b/a Food Town Supermarket, Superior Court, Middlesex County, Docket No. MID-14439/06; Judge Paley. Attorney: Mitchell B. Levine
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