Cantos v. Pierce Coach Lines [Supreme Nassau] Defense Verdict Plaintiff, a six-year-old school child, was struck and seriously injured by co-defendant's vehicle after the child had exited from our client's school bus. Plaintiff asserted that the school bus driver negligently stopped the bus across the street from the designated stop, thus requiring the child to cross the street, and failed to provide the child with a safe place to alight by pulling too far over to the side of the road, thereby allowing the other vehicle to pass. We convinced the jury that the school bus driver had not acted negligently, and that the sole proximate cause of the accident was co-defendant's unlawful failure to halt when faced with a stopped school bus discharging its young passengers.
Moretti v. Wilford Sanon, MTA LI Bus [Supreme Nassau] Two Defense Verdicts This wrongful death suit arose out of a one-vehicle accident that occurred during a heavy snowstorm. Plaintiff was a passenger in an MTA vehicle that was providing him with mandatory alternate transportation for the disabled. The MTA van hit a snow-bank, ran off the road, and struck a tree. The accident caused plaintiff to fall from his seat and sustain a fractured hip. He died in the hospital shortly after undergoing hip surgery. The jury delivered a unanimous defense verdict in, agreeing with our argument that the unfortunate accident was not due to any negligence on the part of the van operator. The trial judge set aside the verdict as against the weight of the credible evidence, but on re-trial, a different jury delivered a second defense verdict. The court then denied plaintiff's motion to set aside the second defense verdict on the basis of the fact that two juries had now reached the same conclusion.
Siena v. Dattco, Inc. [Supreme New York] Defense Verdict Plaintiff, a school teacher in Connecticut, had traveled to the American Museum of Natural History in Manhattan with other teachers and several classes on our client's buses. She claimed that after boarding the bus for the return trip home, the bus driver pulled away while she was still standing to count the number of children. She alleged that the bus came to a sudden stop, for no apparent reason, violently throwing her to the floor. Plaintiff claimed to have suffered a traumatic brain injury, visual and hearing disturbances, vertigo, and occasional blackouts. At trial, we convinced the jury that the bus operator was forced to come to a sudden stop when an ambulance entered the intersection against a red traffic light, crossing in front of the bus. The jury rendered a defense verdict on the basis of the "emergency" doctrine.
JOHNSON v. NYCTA [Supreme Richmond] Defense Verdict. This case arose out of a typical "question of lights" issue involving a Transit Authority bus and plaintiff's private automobile. We obtained video taken by a surveillance camera attached to an ATM machine at a nearby bank that showed the flow of traffic leading up to the time of the accident. We also secured the cooperation of the bank's own IT expert, who testified for the benefit of both the judge and the jury as to the manner in which the video was taken and maintained. We successfully argued to the jury that the video proved that the bus operator was traveling along with other traffic facing a steady green signal and that the plaintiff had entered the intersection against a red signal. Plaintiff had sustained a fractured pelvis and her settlement demand throughout trial was $450,000.
ANDERSON v. NYCTA [Supreme Richmond] Defense Verdict. The 62-year-old plaintiff attempted to exit through the rear door of a Transit Authority bus, when she claims that she was caused to fall as a result of the presence of snow and slush, presumably tracked onto the bus by other passengers. She alleged that the bus operator was negligent for failing to keep the bus in a reasonably safe condition. The bus operator testified with regard to his pre-trip inspection, during which he made certain that there was no debris on the floor of the bus. He also explained that he cannot leave the driver's seat during his run and is unable to continually monitor the condition of the bus to his rear. The jury returned a defense verdict after 15 minutes of deliberation, finding that the bus operator had not acted unreasonably under the circumstances. Plaintiff suffered a comminuted fracture of her tibia that required an open reduction and internal fixation.
PETTYJOHN v. NYCTA [New York Supreme] Defense Verdict. Plaintiff claimed to have slipped and fallen on the steps in a subway station due to the presence of water that was dripping from the adjacent wall. Plaintiff presented evidence that the presence of water on the steps was a recurring condition. On cross-examination, we established that the area of wetness was located immediately adjacent to the wall, beneath the stairway banister, and that the rest of the steps were free of any debris. The jury rendered a defense verdict, agreeing with our defense that the presence of a small amount of rainwater in a corner of the steps did not render the subway station to be unreasonably maintained. Plaintiff had suffered a bimalleolar fracture for which he underwent an open reduction and internal fixation.
Faber v. NYCHA and NYCTA [Supreme New York] Trial Dismissal Plaintiff claimed that he struck his head due to a defective hatch door of an elevator in a Housing Authority project. He then walked to a nearby subway station in a dazed condition, and fell onto the subway tracks as a train entered the station. Plaintiff suffered very serious injuries as a result. At trial, we successfully precluded testimony from the plaintiff's engineering expert, which was being offered to establish that the train motorman should have been able to bring his train to a stop before coming into contact with plaintiff in the roadbed. The lower court then granted our motion for a Trial Order of Dismissal, as plaintiff could not prove a prima facie case of liability against Transit. The preclusion of the plaintiff's expert and the granting of the Trial Order of Dismissal, were affirmed by the Appellate Division. Faber v. New York City Housing Authority 258 AD2d 394, 685 N.Y.S.2d 691 (1st Dept. 1999)
Bae v. NYCTA [Supreme Queens] Defense Verdict Plaintiff claimed that she was a passenger on a bus and was violently thrown from her seat when the bus came to a sudden and unexpected stop. The bus operator denied that anything unusual had occurred in his operation of the bus. Plaintiff sustained serious injuries, ultimately requiring lumbar fusion surgery. Based upon evidence provided by an independent eyewitness, whose cooperation we secured, we successfully argued to the jury that plaintiff fell because she was not holding on while standing in a moving bus.
Micciche v. NYCTA [Supreme Richmond] Defense Verdict Plaintiff was walking to the front of a bus to exit, when she was thrown to the floor. The bus operator testified that he was forced to stop short, as a result of someone throwing ice and snow at the bus's front windshield. We successfully argued to the jury that the sudden stop was not the fault of the bus driver, but was rather due to an unexpected emergency not of the driver's own making.
Ramirez v. NYCTA [Supreme Queens] Defense Verdict Plaintiff testified that she was caused to fall as she was descending the exterior steps at the Willets Point train station, as a result of a defect in the stairs. We presented the NYCTA station supervisor, who testified on the basis of his contemporaneous accident report, that plaintiff told him that she had been pushed down the stairs by another commuter. We convinced the jury that plaintiff's current version of the incident was not believable, and that the Transit Authority was not responsible for an incident in which one commuter pushes another.
Morris v. MABSTOA & NYCTA [Supreme New York] Defense Verdict Plaintiff claimed that as she was exiting a NYCTA bus on Broadway in Manhattan, she stepped directly into a hole in the roadway, causing her foot to twist. Plaintiff suffered a fractured ankle. We successfully argued to the jury that plaintiff had not proven that the bus operator had failed in his duty to provide her with a reasonably safe place to alight.
Gueye v. NYCTA [Supreme New York] Defense Verdict Plaintiff was riding an escalator in the 34th Street 6th Avenue Subway Station in Manhattan, and claimed that the escalator suddenly stopped, causing her to fall. Plaintiff sustained a left ankle tendon tear, requiring a surgical repair. The NYCTA and Police Aided accident reports confirmed the accident details. Plaintiff relied at trial upon the legal doctrine of res ipsa loquitor, and also upon documentary proof that there had been prior malfunctions in this escalator during the 12- month period before this accident. We successfully argued to the jury that the escalator maintenance records actually revealed that the escalator was properly maintained and that the previous malfunctions were unrelated to the unforeseen malfunction that caused the escalator to stop suddenly while plaintiff was a passenger. The jury deliberated only 20 minutes before rendering a defense verdict.
Omelina v. NYCTA [Supreme Richmond] Defense Verdict Plaintiff, a passenger on a NYCTA bus, claimed to have fallen when the bus suddenly swerved in order to avoid an accident with a vehicle that had cut the bus off. We convinced the jury that the bus driver was faced with an emergency situation, not of his own making, and was thus not at fault for the accident or plaintiff's injuries.
Hernandez v. MTA Long Island Bus [Supreme Nassau] Defense Verdict Plaintiff was crossing a busy street in Nassau County in front of the stopped bus from which he had just exited, when he was struck by a passing bus. Plaintiff claimed that the driver of the bus that struck him should have proceeded more carefully, because bus operators were all aware that passengers regularly cross the street at that point to transfer from one bus to another. The jury rendered a defense verdict, agreeing with our argument that the bus operator had no duty to anticipate that a passenger would illegally cross the street in mid-block, and that he did not have sufficient time to brake after seeing plaintiff emerge from the front of the stopped bus.
Summary Judgment & Dispositive Motions
Clifford v. LIRR. [Supreme New York] In a case that garnered much media attention, plaintiff, a retired NYPD sergeant and current attorney, who is commonly referred to as the " LIRR Vigilante," sought to recover monetary damages for causes of action sounding in slander, libel, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and 42 U.S.C. §1983 civil rights violations, allegedly stemming from an altercation that occurred aboard a LIRR commuter train and an ensuing police investigation. For a substantial period of time prior to the date of incident, plaintiff had undertaken a somewhat bizarre course of conduct, as part of his one-man crusade to instill his personal sense of etiquette and decorum among riders on the LIRR. Plaintiff conceded that he had previously threatened several passengers with a citizen's arrest because of what he thought was excessively loud talking. Upon receipt of this assignment, we assembled a complete history of plaintiff's inappropriate behavior as a train passenger, and prepared a pre-answer motion to dismiss for failure to state a cause of action. The court agreed with our arguments and proof, and dismissed plaintiff's complaint in its entirety as to all defendants.
Glassberg v. Philco Carting Corp . [Supreme New York] Defense Verdict Plaintiff was a 50-year-old freelance computer consultant who was riding his bicycle in lower Manhattan when he was struck by one of the trucks owned by our client's carting company. The bicyclist claimed that our client's truck overtook and ran him over from the rear. The accident resulted in the amputation of the plaintiff's lower left leg, and required a lengthily period of rehabilitation and instruction in the use an artificial limb. The plaintiff steadfastly maintained a settlement demand of $6 million and turned down the carrier's $1 million offer. However, the jury returned a defense verdict after deliberating approximately 45 minutes, upon the proof we provided that the accident occurred when the plaintiff suddenly cut in front of our client's truck while attempting to veer around a parked car in his path.
Hilton v. Independent Coach Corp . [Supreme Nassau] Defense Verdict Decedent and his wife were power-walking on a suburban street in the opposite direction of our client's school bus. After the bus passed the couple, the decedent was found lying on the ground, with his head having been crushed by the rear tires. Plaintiff claimed that the incident must have occurred when the bus sideswiped the decedent as he was walking behind his wife. We convinced the jury, however, that the decedent's prior history of epileptic seizures was the more likely cause of this unfortunate incident.
Pall v. Arthur Brundage, Inc. [Supreme Kings] Defense Verdict Plaintiff was a pedestrian in the crosswalk of a busy intersection in midtown Manhattan, when she was run over by the front wheels of our client's bus that was making a left turn. Plaintiff claimed that she was crossing the street with a green traffic signal in her favor, while the bus operator, who was facing the same direction, claimed to be making the left-hand turn with a green arrow in his favor. Plaintiff suffered crush injuries and degloving to her feet, and steadfastly maintained a seven-figure settlement demand. We convinced the jury that the sole proximate cause of the incident was the plaintiff's failure to see the bus as it turned in front of her, and that the driver was driving appropriately with a green traffic arrow in his favor.
Moretti v. Wilford Sanon, MTA LI Bus [Supreme Nassau] Two Defense Verdicts This wrongful death suit arose out of a one-vehicle accident that occurred during a heavy snowstorm. Plaintiff was a passenger in an MTA vehicle that was providing him with mandatory alternate transportation for the disabled. The MTA van hit a snow bank, ran off the road, and struck a tree. The accident caused plaintiff to fall from his seat and sustain a fractured hip. He died in the hospital shortly after undergoing hip surgery. The jury delivered a unanimous defense verdict, agreeing with our argument that the unfortunate accident was not due to any negligence on the part of the van operator. The trial judge set aside the verdict as against the weight of the credible evidence, but on retrial, a different jury delivered a second defense verdict. The court then denied plaintiff's motion to set aside the second defense verdict on the basis of the fact that two juries had now reached the same conclusion.
Galvan v. Dattco, Inc. [Civil New York] Defense Verdict Plaintiff claimed to have been struck in the rear by our client's tour bus as he was attempting to make a right-hand turn in midtown Manhattan. The bus operator testified that the vehicle ahead of the plaintiff, also making a right-hand turn, suddenly stopped to allow pedestrians to cross, causing the plaintiff to strike that vehicle prior to the bus coming into contact with the rear of the plaintiff's vehicle. Plaintiff alleged to have suffered a traumatic brain injury, and herniated cervical and lumbar discs. He steadfastly maintained a settlement demand of $500,000. At trial, we convinced the jury that the striking of the plaintiff's vehicle in the rear by our client's bus was not a proximate cause of the plaintiff's claimed injuries, since he had already struck the vehicle ahead of him, which resulted in his head coming into contact with the rearview mirror in his car. The jury rendered a defense verdict on the basis of their finding that plaintiff had not sustained a causally related "serious injury" in this hit-in-the-rear accident.
Maida v. Cornhusker Motor Lines [Supreme Rockland] Defense Verdict Plaintiff claimed that she had stopped her vehicle at a red light at an intersection in Clarkstown, New York, when she was rear-ended by our client's truck. Plaintiff claimed that she suffered a traumatic brain injury, herniated and bulging discs throughout her cervical column, and the onset of debilitating RSD in her left hand. She demanded a seven-figure settlement. With the client's permission, we conceded liability after the driver confirmed the hit-in-the-rear accident. However, at trial, we successfully convinced the jury that the plaintiff's allegedly debilitating conditions were pre-existing. The jury rendered a defense verdict under the Insurance Law, finding no causally related "serious injury."
Hernandez v. MTA Long Island Bus [Supreme Nassau] Defense Verdict Plaintiff was crossing a busy street in Nassau County in front of the stopped bus from which he had just exited when he was struck by a passing bus. Plaintiff claimed that the driver of the bus that struck him should have proceeded more carefully, because bus operators were all aware that passengers regularly cross the street at that point to transfer from one bus to another. The jury returned a verdict in favor of our client, agreeing with our argument that the bus operator had no duty to anticipate that a passenger would illegally cross the street in mid-block to transfer between buses, and that he did not have sufficient time to brake after seeing plaintiff emerge from the front of the stopped bus.
Galarza v. Crown Container Co. Inc. [Supreme Queens] Defense Verdict Plaintiff alleged that he was attempting to cross a street and was run over by our client's garbage truck, as it rolled to a stop at the intersection. Plaintiff also claimed that as a result of the subject accident, he sustained a serious crush injury to his foot. The truck driver denied any contact with plaintiff at all, and testified that he saw plaintiff already limping across the street in front of his stopped truck. While plaintiff was treated for injuries to his foot, we convinced the jury that such injuries would have been far worse if plaintiff had actually been run over by a garbage truck, and that the injury must have occurred shortly before the truck arrived at the scene.
Leonard v. NYCTA [Supreme Richmond] Defense Verdict Plaintiff claimed that a bus struck her vehicle in the rear at an intersection in Richmond County. The bus operator claimed that the incident actually occurred when the plaintiff attempted to change lanes in front of the bus, causing contact between the front portion of the bus and the rear portion of the plaintiff's vehicle. We convinced the jury that the bus operator's version of events was the true version, and that the plaintiff's action in attempting to make an unsafe lane change was the sole proximate cause of the accident.
Isola v. Independent Coach Corp. 38 A.D. 3d 843, 832 N.Y.S.2d 641 (2d Dept. 2007), leave to appeal to the Court of Appeals, denied, 9 NY 3d 802 (2007) The infant plaintiff was discharged by our client's school bus with three other children at a regularly designated bus stop. Plaintiff chose not to cross the street to go to his home, but instead, remained on the same side of the street where he had alighted, congregating with the other children. As the bus pulled away, the child, who was engaged in horseplay, fell backward and stumbled onto the street, where his foot was run over by the bus as it pulled away. Plaintiffs alleged that in so doing, the bus operator had violated a statute that required him to advise the school children to cross the street in front of the stopped school bus, and that such violation gave rise to strict liability for the accident that followed. We moved for summary judgment on behalf of our client, arguing that the bus operator did not violate the statute, and that in any case, the sole proximate cause of the incident was that the infant plaintiff lost his balance while engaged in horseplay, causing him to fall backward into the moving bus, which was an intervening, unforeseeable event. The lower court denied our motion, but on appeal, the Appellate Division reversed, finding no causal connection between the alleged violation of the statute and the incident at issue. The Court of Appeals refused to grant leave.
Namisnak v. Martin, 244 AD2d 258, 664 N.Y.S.2d 435 (1st Dept. 1997) This motor vehicle accident case involved one death and serious injuries to two others that occurred when plaintiffs' host vehicle struck our client's tractor-trailer as plaintiffs' vehicle exited a highway. The truck was going straight ahead in the right-hand lane of a major roadway. Plaintiffs contended that the accident was due, at least in part, to the excessive speed of the tractor-trailer. The lower court denied our motion for summary judgment, but the Appellate Division unanimously reversed, based upon the proof we presented that established that the speed of the truck was not a competent producing cause of the accident. The sole proximate cause of the accident was the plaintiffs' host driver exiting the highway and then striking the side of the passing truck, failing to yield the right-of-way. The Appellate Division also agreed with our argument that an operator of a vehicle, who has the right-of-way, is entitled to anticipate that other vehicles will obey the traffic laws that require them to yield, and that the truck operator did not have a duty to anticipate that the plaintiffs' host driver would ignore a stop sign.
Summary Judgment & Dispositive Motions
Testa v. Rywalt [Supreme Nassau] Plaintiff was a pedestrian struck by an automobile being driven by the co-defendant. The co-defendant's vehicle had failed to yield at an intersection and collided with our client's pizza delivery vehicle. As a result of the collision between the two vehicles, the co-defendant's vehicle spun around, mounted a sidewalk, and struck the pedestrian plaintiff. We obtained summary judgment on behalf of our client, arguing that the co-defendant's proven failure to yield was the sole proximate cause of the accident, and that there was no proof of any negligence on the part of our client's delivery driver, who was simply in the wrong place at the wrong time.
DEFENSE VERDICT IN LEG-OFF CASE
JEFFREY SAMEL & PARTNERS was called upon to represent a carting company when one of its trucks was involved in an accident with a 50-year-old bicyclist in lower Manhattan. The bicyclist claimed that our client's truck overtook and ran over him from the rear. The accident resulted in the amputation of the plaintiff's lower left leg, and required a lengthy period of rehabilitation and instruction in the use of an artificial prosthesis.
Our firm received this assignment shortly after the accident, and immediately pursued an investigation of the matter that included a site inspection with measurements, and photographs taken so soon following the occurrence that they accurately reflected the scene as it existed on the date of the accident. We were able to use these photographs at trial as graphic proof disputing essential elements of plaintiff's liability allegations. We also obtained the cooperation of two independent eyewitnesses, who supported our contention that the accident was not due to any negligence on the part of our client's truck driver.
During the course of pretrial discovery, we conducted a thorough deposition of the plaintiff, defended the deposition of our client's truck driver, and participated in non-party depositions of the two independent eyewitnesses and of the first police officer to arrive at the scene of the accident. We also arranged for the plaintiff to submit to an independent medical examination conducted by a Board Certified Physiatrist and a Vocational Rehabilitation Expert.
The plaintiff maintained a settlement demand of $6 million, and rejected out-of-hand our client's offer of $1 million. Michael Pomposello, a Senior Trial Attorney in our office, ably presented the evidence that we had gathered in support of the defenses we established on behalf of our client. He argued successfully to a New York County jury that the believable evidence established that our client's driver was proceeding within the speed limit and within the moving traffic lane, when the plaintiff bicyclist veered into the truck's path in an ill-fated attempt to negotiate around parked vehicles. The jury rendered a Defense Verdict on behalf of our client after only 45 minutes of deliberation. The plaintiff's motion to set aside the verdict was denied by the trial court.