Abramowitz v. Maghsoudlou and Star Pontiac Corp., 295 AD2d 548, 745 N.Y.S.2d 36 (2d Dept. 2002) Plaintiffs were passengers in a vehicle owned and operated by the co-defendant that was purchased from our client approximately one year prior to the occurrence. After the three youths attended the Woodstock Music Festival, they returned to the co-defendant's vehicle to find that it had a flat tire. They replaced the flat with one of the original regular-sized tires that had come with the vehicle when purchased, despite the fact that the co-defendant had subsequently equipped the vehicle with four oversized tires. The two plaintiff passengers were very seriously injured when the co-defendant's vehicle suddenly swerved off the road and down an embankment, and struck a tree. Plaintiffs attempted to get around the co-defendant's limited policy, by suing our client and the vehicle manufacturer, alleging failure to warn the purchaser of the dangers of riding on different-sized tires. Our motion for summary judgment on behalf of the car dealership was denied, but the Appellate Division reversed, agreeing with our argument that the vehicle sold to the co-defendant was equipped with an owner's manual that contained ample warning against using different size tires. It should be noted that no similar motion was brought on behalf of the vehicle manufacturer.
DePasquale v. Morbark 254 A.D.2d 450, 678 N.Y.S.2d 777 (2d Dept 1998) Plaintiff, an 18-year-old worker for a tree trimming company, lost his leg in a wood chipper when he kicked at a stuck branch and his foot followed through into the teeth of the machine. Plaintiff alleged various design flaws in the machine as well as a failure to warn. At a jury trial, the defendant, a Michigan manufacturer of the wood chipper, was represented by other counsel and was found liable for more than $3 million in damages. We were retained by defendant for the appeal. We argued that there was no duty to warn of dangers that were open and obvious. Moreover, we pointed out that the trial court had submitted a general verdict, in which the jurors were not asked to specify which of several theories supported their verdict, so that the failure-to-warn theory might have been the basis for at least several jurors' verdict. The Appellate Division agreed and reversed the judgment, holding that the failure-to-warn theory should not have been submitted to the jury. The Court also agreed with our argument that evidence of post-accident design change in the machine should not have been admitted against the defendant, making plaintiff's chances at retrial more difficult. A new trial, in which we continued to represent the defendant, ended in a mistrial because of an inconsistency in the jury verdict. Afterward, our client, who had been liable for $3 million before retaining our firm, offered $100,000 to settle, and plaintiff accepted.
Jaffe v. PJA Motor Corp. 253 A.D.2d 853, 678 N.Y.S.2d 503 (2d Dept. 1998) This case involved a one-car accident, in which the plaintiff claimed that her brakes did not function properly after being serviced by our client. However, plaintiff made no effort to preserve the evidence and thereby deprived the defense of the opportunity to retain an expert to examine the brakes. Our motion to dismiss the case on that ground was granted and the Appellate Division affirmed.