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1539
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SAMPLING OF CASES HANDLED BY THE PARTNERS Trial Level Castellanos v. United Cerebral Palsy Assn’n of Greater Suffolk, 24 Misc. 3d 1216(a) - grant of summary judgment dismissal to defendant on all claims including Labor Law 200, 241(6) and 240 applying “single family” exception found in Labor Law statute to nonprofit entity UCP. Adami v. C.J. Rubino & Co. Inc., 22 Misc. 3d 1133(a) - grant of summary judgment dismissal to 3rd party defendant insurance company in declaratory judgment action holding that coverage for action that was not an “event’ as defined by the policy did not exist. Chelli v. Banlee Assoc., Supreme Court, Queens County – defense verdict in favor of third party defendant /employer in action where jury found that plaintiff did not sustain a “grave injury” within the meaning of Section 11 of the Workers Compensation Law, despite awarding plaintiff $11,000,000 in compensatory damages for brain injuries and partial paralysis, all of which is to be paid by the defendant/ third party plaintiff. It remains the single largest defense verdict ever successfully taken on behalf of the State Insurance Fund. Rosenberg v. Curry Chevrolet, U.S. District Court, Southern District of New York – defendant’s verdict after four week product liability/ negligence trial where plaintiff was rendered a complete quadriplegic as a result of a single vehicle, rollover automobile accident. Singh v. Hilltop Farms, Supreme Court, Nassau County – defendant’s verdict on threshold issue. Plaintiff was rear-ended by defendant’s truck and sustained herniated lumbar disc. Even though the MRI report indicated a herniated disc, plaintiff’s expert conceded on cross examination the lack of objective evidence of nerve root impingement. Aposterleris v. Promark v. Bear Tree Service, U.S. District Court, Eastern District of New York – defendant’s verdict in favor of third party defendant owner of alleged defective stump grinder. Manufacturer found 100% at fault after a successful Rule 51 motion made at the close of plaintiff’s case. Successfully argued special employee defense. Injuries consisted of severe laceration to lower extremity with loss of calf muscle, constricted Achilles tendon, permanent loss of employment and inability to walk without a cane. Case subsequently settled against the manufacturer in the amount of $1,300,000. Moussa v. Eco-Safe Abatement, Supreme Court, Kings County – defendant’s verdict in favor of employer on Labor Law 240 claim where plaintiff fell from ladder which was placed on top of scaffold and against heating pipes. Successfully argued proximate cause to the jury. Injuries included post concussion syndrome and seizure disorder. Pepperman v. Desetta Nursery, Supreme Court, Nassau County – Defendant’s verdict in favor of nursery where plaintiff claimed defective watering system caused water to shoot into street knocking him from his motorcycle. Injuries included trimaleolar fracture and two inch leg shortening. Maisonette v. Auto Dent v. Boro Sign, Supreme Court, Kings County – directed verdict in favor of employer on labor law 240 case where plaintiff fell from 20 foot ladder after receiving electrical shock due to sign not being turned off. Case settled against remaining defendant for $1,000,000. Zakzrasuska v. Maplewood Construction, Supreme Court, Queens County – Defendant’s verdict in favor of road maintenance company which was closing off lane for highway maintenance at point of accident. Successfully argued that driver inattention was sole cause of accident. Injuries included amputation of leg. Appellate Level Foster v. Herbert Slepoy Corp., (2nd Dept. 2009-01434) - reversed lower court and dismissed plaintiff's direct action against snow contractor specifically clarifying a contractor's prima facie burden on a summary judgment motion as against a third party to the original contract. Velez v. 19-27 Orchard Street, 70 A.D.3d 488 - affirmed lower court ruling that the third party complaint stated a viable cause of action against both the individual defendant and his multiple corporate entities for contribution and or indemnity in a Labor Law action. The Appellate Court also found the pleadings supported a theory of recovery based on "piercing the corporate veil". Arriola v. A & W Landscaping of Long Island, 68 A.D.3d 484 - reversed lower court's denial of defendant's summary judgment motion and dismissed all claims against contractor brought by plaintiff who underwent spinal fusion finding the contractor established it did not "launch an instrument of harm" at the accident location. Pepe v. Center for Jewish History, Inc., 59 A.D.3d 277 - reversed lower court and dismissed general contractor’s action for contractual indemnity against subcontractor holding that plaintiff’s accident did not “arise out of” or “occur in connection with” the subcontractor’s work. Barrios v. Boston Properties LLC, 55 A.D.3d 339 - reversed lower court in part and dismissed plaintiff’s Labor Law 241(6) claim holding that a freight elevator was not a “material hoist” or ‘thoroughfare” as those term are employed by NYCRR. The lower court had previous dismissed plaintiff’s Labor Law 240 claim and subsequently dismissed the remaining contractual indemnity claim against the third party defendant. Finnocchiaro v. Napolitano, 52 A.D.3d 463 - affirmed lower court’s dismissal of action by hunter who suffered fractured spine on defendant’s land holding that New York State’s “recreational use statute” barred recovery and the doctrine of “danger invites rescue” was inapplicable to the facts at bar. Spano v. Northwood Tree Care, Inc., 48 A.D.3d 667 - affirmed dismissal of plaintiff’s complaint holding defendant tree trimming company owed no duty of care under its contract with the Town to injured Town employee. Castro v. Maple Run Condominium Ass’n., 41 A.D.3d 412 - reversed lower court and dismissed action against snow removal contractor holding it owed plaintiff no duty of care under its contract and plaintiff’s expert affidavit was insufficient and “conclusory”. Sclafani v. Washington Mutual, 36 A.D.3d 542 - affirmed lower court’s dismissal of plaintiff’s action holding defendants demonstrated “good cause’ for the timing of the dismissal motion and the complained of condition was “open and obvious” and therefore not actionable. Zabbia v. Westwood, LLC, 18 A.D.3d 542 - reversed lower court’s decision and dismissed plaintiff’s cause of action holding plaintiff’s allegation that the defendants “caused and created” the complained of condition was “mere speculation”. Marro v. St. Vincent’s Hospital, 294 A.D.2d 341 – affirmed lower court decision which granted defendant a negative inference jury charge against plaintiff for spoliation of evidence. Plaintiff had been rendered a blind quadriplegic as the result of a motorcycle accident Vanriel v. A. Weissman Real Estate, 283 A.D.2d 260 – affirmed lower court trial verdict granting owner and general contractor common law indemnification against the employer on Labor Law 240 claim. The appellate court held the trial court correctly precluded defendant employer from introducing evidence at trial contradicting statements contained in earlier summary judgment motion practice applying the doctrine of Judicial Admissions. Coudakis v. 20th Equities Corp., 281 AD2d 507 – affirmed dismissal of complaint against a refrigeration contractor that had placed a refrigeration unit on a sidewalk in open and obvious view of the plaintiff who fell over it. Ortiz v. SFDS Development, 274 A.D.2d 341 – reversed lower court decision and granted common law indemnification to owner in labor law case. Kampf v. Bank of New York, 259 A.D.2d 439 – overturned court below and dismissed complaint against a contractor based upon a lack of duty. Case created precedent in the First Department that a snow and ice contractor does not owe a duty of care to the general public based upon its limited contract to plow. Escobar v. Rodriquez, 243 A.D.2d 676 – reversed court below and dismissed complaint against driver of car involved in multiple vehicle collision. DeCurtis v. T.H. Associates, 241 A.D.2d 536 –
overturned court below and dismissed complaint against contractor
due to lack of duty. Case marked first time the Second Department
ruled a snow and ice contractor did not owe a duty of care to the
general public as a result of its limited contract to plow. |
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