Results

Dami v. Warwick Central School District

The plaintiff commenced an action against the Warwick Central School District after being struck in the face with a discus during track practice. Plaintiff also commenced an action against the student athlete who threw the discus. Plaintiff was a member of the track team, and experienced in the discus event. Plaintiff claimed that the School District was negligent in allowing students to throw discuses in an area where other students would be expected to be; in failing to instruct students to keep a proper lookout; and in failing to warn those traversing the fields of the proper distance.

Jessica McClung of our Hopewell Junction office moved for summary judgment on behalf of the School District. We argued that being hit with a discus was a risk that was inherent in participation in, and/or being a spectator of, the discus event; that plaintiff voluntarily placed herself in a position where she knew the discus could land; and that there was no adequate basis for plaintiff's failure to warn claim since the condition of the discus field and the fact that students were practicing the discus was an open and obvious condition which plaintiff acknowledged observing and which was not concealed in any manner.

The Court granted the motion for summary judgment. In doing so, the Court found that the risk of being hit with a discus was perfectly obvious and that by participating in the discus event, plaintiff voluntarily assumed that risk.

---

Cassidy v. Leonard H. Hawkins, Post No. 156, The American Legion, Department of New York

Ralph A. Cosentino of our New York City office obtained a dismissal of the Supreme Court, Bronx County action against our client, Leonard H. Hawkins, Post No. 156, The American Legion, Department of New York.

Plaintiff alleged that he was caused to sustain serious injuries as the result of a slip and fall on ice located within the Post's parking lot. Mr. Cosentino successfully argued that the Post could not be found liable for Mr. Cassidy's slip and fall, which occurred at some time after 10:00 p.m., because the Post neither created the condition alleged nor had notice.

Judge Kenneth Thompson of Bronx County, Supreme Court granted our motion and found that the plaintiff's theory that the Post created the condition alleged was unavailing. Furthermore, he determined that the Post could not have had notice of the condition as plaintiff, himself, testified that he had walked in the accident location approximately one hour prior to his fall and did not notice ice at that time. (October, 2011).

---

Ammirato v. Duraclean International, Inc.

 

 

---

Gadson v. Carol Grimaldi-Guy, et al.

The plaintiff commenced the instant action alleging that she sustained various serious injuries as a result of a motor vehicle accident occurring on the Harlem River Drive in New York City. At the time of the accident, the plaintiff was a passenger in the vehicle owned by co-defendant, 58 Corp., and operated by co-defendant, William O. Welsh, which allegedly collided with the vehicle owned and operated by our client, Carol P. Grimaldi-Guy.

Following the completion of discovery, Kristin L. Weinberger moved for summary judgment to dismiss the plaintiff's complaint upon failure to satisfy the New York's threshold for serious injury. The co-defendants also filed a motion for similar relief.  The Court issued a decision granting the defendants' motions. The Court held that the defendants made a prima facie showing that the plaintiff's injuries were not serious within the meaning of Insurance Law Section 5102(d) by proffering objective medical evidence that her injuries were degenerative and unrelated to the accident at issue. The plaintiff failed to submit any objective evidence establishing a serious injury and therefore, could not defeat the defendants' motion. (July, 2011)

---

Latif v. Yuanwu Realty Corp., et al.

Kristin L. Weinberger successfully obtained summary judgment and dismissal of the plaintiff's complaint against our client, Yuanwu Realty Corp. This lawsuit emanated from an accident where plaintiff alleges she was caused to trip and fall in a hole in the floor located in the interior of the premises owned by our client. Prior to the date of the accident, our client leased the subject premises to the co-defendant, Manny's Linen Inc., the entity which operated a linen retail store at the premises.

The Court accepted the arguments advanced in our summary judgment motion finding that Yuanwu is an out of possession landlord that did not retain the right to enter or inspect the premises; that the monthly visits by the managing agent to collect rent were not inspections for the purposes of making repairs; and it was not established that the alleged dangerous condition existed at the time the lease was negotiated. Additionally, the Court found that plaintiff's submission of an affidavit by a witness stating that she observed the alleged dangerous condition prior to the accident was unavailing since the witness was not disclosed prior to the filing of the note of issue. (July, 2011)

---

Musachio v. Smithtown Central School District

---

Dicasoli v. Bovis Lend Lease LMB, Inc. and CRP/Extell Parcel I, LP.

Jaime Lehrer of our New York office was successful in her motion for summary judgment, dismissing plaintiff's complaint wherein the plaintiff tripped and fell over an exposed electrical pipe protruding from the concrete floor at a construction site. Plaintiff alleged that the subject pipe was sticking up eight inches from the floor. Plaintiff brought action against the site's construction manager and owner alleging violations of common law negligence, as well as Labor Law §§200 and 241(6).

Ms. Lehrer argued that plaintiff's claims premised upon common law negligence and Labor Law §200 were without merit inasmuch as neither Bovis nor Extell controlled plaintiff's work at the time of the accident. It was also submitted that the eight inch pipe was an open and obvious condition upon which liability could not be premised, especially in light of plaintiff's extensive experience in the field of construction. Finally, it was argued that plaintiff's Labor Law §241(6) cause of action, founded upon a purported violation of Industrial Code §23-1.7, should be dismissed as a matter of law because the accident occurred in an open area and the pipe was embedded into the concrete floor pursuant to electric work taking place on site. (June 2011)

---

Fabian v. Toma Motors, Inc.

Ralph A. Cosentino and Kristin L. Weinberger of our New York City office were successful in obtaining summary judgment and dismissing the plaintiff's complaint against our client, Toma Motors, Inc, based on the application of the Graves Amendment to the Federal Transportation Act (49 USC § 30106 [a]).

The plaintiff sustained serious personal injuries as a result of a one-car motor vehicle accident which occurred while he was seated in the back of the vehicle driven by the co-defendant. The vehicle was owned by our client and was rented to the co-defendant driver by an affiliate of our client, an entity which was not named as a party in the action. In support of the summary judgment motion, it was argued that a business engaged in the practice of renting motor vehicles is exempted from liability predicated upon Vehicle and Traffic Law § 388. The key issue on the motion was whether our client was an affiliate of the entity which rented the subject vehicle to the co-defendant. In support of the motion, we submitted an affidavit from a principal of our client-corporation establishing that the entities which owned and rented the subject vehicle are family corporations with the same corporate officers and shareholders.

Judge Kenneth Thompson of Bronx County, Supreme Court granted our motion and found that we established that the renter of the vehicle was an affiliate of our client, which was engaged in the lawful practice of renting motor vehicles and the vehicle in question was in the possession of the co-defendant at the time of the accident pursuant to a written rental agreement. This was the second successful motion for Toma Motors, Inc. stemming from the same motor vehicle accident. (June, 2011).

---

Garcia v. Bonnie Gould, as the Public Administrator of Bronx County for the Estate of Ruckel, William, E

Plaintiff, a 41 year old belted driver, was struck in the rear by a vehicle operated by the deceased defendant on January 24, 2006. The defendant's demise was unrelated to the occurrence. Plaintiff claimed left shoulder impingement with arthroscopy and a cervical laminectomy and fusion with continuing permanent pain and restrictions. Plaintiff never returned to full time employment as a sewing factory foreman earning $31,000 per annum. He made several brief attempts to return to work but claimed he could not perform the heavy labor of the position.

Plaintiff received summary judgment on liability three and one half years ago earning potential interest at 9% per year. Our client had 1.750 million in coverage; plaintiff's settlement demand before jury selection was $950,000; offer was $125,000; after cross examination of plaintiff and during cross examination of plaintiff's spinal surgeon a hi-lo agreement of 100k/800k was achieved (interest was eliminated). Medical specials were $78,000. Plaintiff asked the jury during summation for 1.2 million. The case was tried by Robert A. Shaw of our New York City office and after a three and one half week trial in the Supreme Court, Bronx County before Judge Alexander W. Hunter, Jr. a verdict was rendered after 6.5 hours of deliberation for $740,000. Plaintiff called three treating physicians and an economist as experts and presented defendant's surveillance video of plaintiff on his case. Defendant called an accident reconstructionist; a biomechanical engineer; a orthopedist; a neurologist; a vocational rehabilitation counselor; a radiologist and subpoenaed a no fault physiatrist. Plaintiff's in limine motion for a Frye hearing to preclude the accident reconstruction and bio mechanical experts was denied in a written decision. (May 2011)

---

Santorelli v. Bovis Lend Lease LMB, Inc. and CRP/Extell Parcel I, LP

Nicholas Cardascia successfully moved for summary judgment on behalf of Bovis Lend Lease LMB, Inc and CRP/Extell Parcel I, LP in an action where plaintiff alleged to have sustained personal injuries during the course of his work as a journeyman electrician after slipping and falling on rock located about the exterior of the construction site. Plaintiff brought action alleging common law negligence, as well as violations of Labor Law §§200 and 241(6).

Mr. Cardascia argued that the record was bereft of any evidence that the defendants controlled plaintiff's work or knew of any allegedly dangerous condition which may have led to plaintiff's accident. It was also argued that the rock in question was not an inherently dangerous condition but rather a part of the land's natural terrain for which liability could not be held. (April 2011).

---

Ashley v. Paradise Theater Productions, LLC, et al.

Kristin L. Weinberger successfully moved for summary judgment on behalf of our clients, Paradise Theater Productions, LLC and The First Paradise Theater Corp.

Plaintiff commenced the instant action against our clients emanating from an assault which took place while plaintiff was attending a concert at Paradise Theater, Bronx, New York. Plaintiff claimed that he was assaulted by one of the theater's security guards after a fight broke out in the lobby of the theater. The First Paradise Theater Corp., owned the theater, and leased same to Paradise Theater Productions, LLC. Approximately three months prior to the date of the subject accident, the lease was assigned to a non-party entity, Mossberg Credit Services, Inc. In support of our motion, it was argued that Mossberg was solely responsible for providing security at the theater and it had exclusive occupancy and control of the premises on the date of plaintiff's accident.

Judge Lizbeth Gonzalez of Bronx Count Supreme Court granted our motion finding that although pursuant to the assignment agreement Paradise Theater Productions retained the right to collect proceeds from various events held at the theater, our clients could not be held liable since the owner was an out-of-possession landlord and retained only a limited right of re-entry and the owner and assignor did not have notice that the tenant Mossberg failed to provide proper security at its events. (April, 2011)

---

Griffin v. Port Authority of New York and New Jersey, Jet Blue Airlines and Guardian Security Services, Inc.

Jaime Lehrer of our New York office successfully moved for summary judgment on behalf of Guardian Security Services, Inc, leading to the dismissal of plaintiff's complaint and all cross-claims for indemnification brought by Port Authority and Jet Blue. The matter involved a slip and fall due to a puddle of water in the La Guardia Airport. The plaintiff alleged that the puddle was clear. An eye witness detailed that the puddle existed in the concourse for no longer than ten minutes prior to plaintiff's accident.

Ms. Lehrer argued that the record contained no suggestion that Guardian, the airport's cleaning company, had actual notice of the puddle, as evidenced by the fact that there were no signs of cleaning activity in the area of plaintiff's fall nor any indication that complaints had been voiced to Guardian prior to the accident. Further, Ms. Lehrer argued that there was no evidence in the record that Guardian had constructive notice of the condition as the puddle was admittedly clear and existed merely for ten minutes prior to the happening of the accident. (April 2011)

---

Rossi v. Salem Truck Leasing

Mike Rabus tried a tractor trailer roll over case in King's County.  The case settled for a total of $650,000 as the Worker's Compensation Carrier agreed to accept 1/3 of the settlement in satisfaction of their $600,000 lien. Plaintiff's demand at mediation was 3.8 million. The plaintiff sustained a spinal cord injury which necessitated a C3-4 disc excision with bone graft and plate following the accident and a later discectomy at C5-6 with bone graft and plate application.

---

Richman v. Alexander Wall Corp.

Dr. Gayle Richman filed a claim with her homeowner's carrier, co-defendant Harleysville Insurance Company, for damages caused by raccoon infestation of her East Hampton, NY home. Our client, Alexander Wall Co. (a remediation contractor) was hired to remove the damaged walls and ceilings.  Plaintiff sought recovery from our client for negligence (incomplete remediation) and conversion (nonconsensual removal of her personal belongings and home furniture to our warehouse during demolition).

The case was tried by Patrick J. Kenny with assistance from John F. Gillespie  in Supreme Court, New York.  The jury awarded the plaintiff $70,000 against Harleysville for breach of the insurance contract but found in favor of our client  on the negligence and conversion claims and awarded our client $55,000 on its counterclaim against plaintiff for unpaid warehouse storage fees.  No offers were made during trial; plaintiff's demand remained firm at "several millions" throughout trial.  (March, 2011)

---

Calloway v. Toma Motors, Inc., et al.

Ralph A. Cosentino and Kristin L. Weinberger of our New York City office were successful in obtaining summary judgment and dismissing the plaintiff's complaint against our client, Toma Motors, Inc, based on the application of the Graves Amendment to the Federal Transportation Act (49 USC § 30106 [a]).

The plaintiff sustained serious personal injuries as a result of a one-car motor vehicle accident which occurred while she was seated in the front-passenger seat of the vehicle driven by the co-defendant. The vehicle was owned by our client and was rented to the co-defendant driver by an affiliate of our client, an entity which was not named as a party in the action. In support of the summary judgment motion, it was argued that a business engaged in the practice of renting motor vehicles is exempted from liability predicated upon Vehicle and Traffic Law § 388. The key issue on the motion was whether our client was an affiliate of the entity which rented the subject vehicle to the co-defendant. In support of the motion, we submitted an affidavit from a principal of our client-corporation establishing that the entities which owned and rented the subject vehicle are family corporations with the same corporate officers and shareholders.

Judge Kibbie E. Payne of Bronx County Supreme Court granted our motion and found that we established that the renter of the vehicle was an affiliate of our client, which was engaged in the lawful practice of renting of motor vehicles and the vehicle in question was in the possession of the co-defendant at the time of the accident pursuant to a written rental agreement. (March, 2011)

---

MacBrien-Collins v. Dick Gidron Ford, Inc., et al.

George Evans moved for summary judgment based upon the expiration of the statute of limitations.  When plaintiff served an Amended Complaint three years after the expiration of the statute of limitations.  Plaintiff argued in opposition that the "relation back" doctrine applied based upon an earlier action against Gidron Oldsmobile & Cadillac. Moreover, plaintiff also argued collateral estoppel applied because a "Settle Order" issued as a result of the motion allowing the amended complaint was based upon the "relation back" doctrine. Judge Howard Silver of Bronx County Supreme Court granted our motion dismissing the defendants from the action. The Court found plaintiff failed to satisfy two of the elements necessary for the "relation back" doctrine to apply. Moreover, the Court found collateral estoppel did not apply because the "Settle Order" did not strictly conform to his earlier decision allowing the amended complaint. The language indicating the "relation back" doctrine applied was thus, beyond the parameters of his earlier decision. (January, 2011)

---

Bennett v. Parkes

---

Antuofermo v. East Meadow UFSD

The plaintiff, a 4th grade boy, fell off the cafeteria bench in the lunchroom at Parkway Elementary School in the East Meadow School District.  The cafeteria had picnic style benches and tables.  The plaintiff testified that another student came running over and jumped on the other end of the bench causing the table to buckle and the plaintiff to slide off the bench onto the floor.  The attorney for the plaintiff argued that the table was not properly locked in position and therefore the school district was negligent.  He also argued that the students were negligently supervised.

---