APPELLATE DECISIONS:

Isola v. Independent Coach Corp, ,____N.Y.S.2d_____ (2nd Dept. 2007) – Motor Vehicle: Reversed lower court’s denial of summary judgment to school bus company client whose driver admitted failing to instruct infant plaintiff to cross street in front of stopped school, ruling that such failure was not a proximate cause of accident in which the child fell from a sidewalk onto the street, causing rear wheel of bus to run over child’s foot.

Whitney v. New York City Transit Authority, ____ N.Y.S.2d ____ (2nd Dept. 2007) – Common Carrier: Denied plaintiff’s motion to set aside defense verdict obtained by our office in jury trial held in Queens County in which wheelchair-bound passenger fell to the street while alighting Transit Authority bus on a wheelchair lift that failed. The Court ruled that res ipsa loquitur did not apply.

Lutheran Social Services v. GuideOne Insurance, 827 N.Y.S.2d 122 (1st Dept. 2006) – Insurance Coverage: Reversed lower court’s granting of summary judgment in Declaratory Judgment Action by which insured sought reimbursement for $100,000 in legal expenses incurred in the defense of a wrongful adoption lawsuit, ruling that such claim fell outside the scope of our client’s policy coverage and that a disclaimer was unnecessary.

Ambroise v. New York City Transit Authority, 826 N.Y.S.2d 261 (2nd Dept. 2006) – Premises Liability: Reversed lower court’s denial of Transit Authority’s motion for summary judgment, holding that photographs of slightly raised area of concrete that allegedly caused trip-and-fall accident were sufficient to establish that the alleged defect was too trivial to be actionable.

DeSilva v. City of New York, 790 N.Y.S.2d 87 (1st Dept. 2005) – Construction: Upheld granting of summary judgment motion to Verizon subcontractor due to plaintiff’s failure to prove that such contractor was responsible for the existence of a manhole cover lying on top of a subway grating.

Marcinak v. Technical Mechanical Services, Inc., 793 N.Y.S.2d 350 (1st Dept. 2005) - Labor Law: Reinstated 75% liability finding against co-defendant building owner, thereby reducing client’s responsibility accordingly. The Court held that the client, which was servicing refrigeration units, did not have the kind of comprehensive and inclusive contract that would displace the building owner’s normal duty to maintain its premises in a safe manner.

Vlachos v. Saueracker, 782 N.Y.S.2d 104 (2nd Dept. 2004) – Motor Vehicle: Reversed lower court’s granting of summary judgment regarding liability against client driver, holding that there were triable issues of fact as to whether the client’s nonnegligent explanation for the rear-end collision with plaintiff’s stopped vehicle rebutted the inference of negligence arising out of such collision.

Roviello v. Schoolman Transportation Systems, Inc., 780 N.Y.S.2d 295 (2nd Dept. 2004) - Motor Vehicle: Upheld granting of summary judgment to client whose bus driver was forced to brake suddenly to avoid colliding with a vehicle that swerved in front of the bus on the basis of the application of the “emergency doctrine.”

Kraut v. New York City Transit Authority, 762 N.Y.S.2d 251 (2nd Dept. 2003) – Common Carrier: Denied plaintiff’s appeal of jury’s defense verdict on liability regarding injuries sustained by passengers as a result of the sudden stop of a City bus.

Santoro v. New York City Transit Authority, 755 N.Y.S.2d 425 (2nd Dept. 2003) – Labor Law: Upheld granting of summary judgment against construction worker who fell from back of a flatbed truck when it began to tilt, holding that the extraordinary protection of the “scaffold law” extends only to a narrow class of special hazards and does not encompass any and all perils that may be connected tangentially to the effects of gravity.

Abramowitz v. Maghsoudlou, 745 N.Y.S.2d 36 (2nd Dept. 2002) – Product Liability: Reversed the denial of summary judgment to client auto dealership, ruling that the seller of an automobile had no duty to warn purchaser of the dangers associated with driving with tires of different sizes at excessive speeds and for long distances. (The manufacturer of the automobile failed to appeal the denial of summary judgment.)

Faber v. NYCHA and NYCTA, 685 N.Y.S.2d 691 (1st Dept. 1999) – Expert Witness Evidence: Upheld the trial court’s dismissal of the plaintiff’s claims upon preclusion of the plaintiff’s liability experts from testifying with respect to the ultimate issue of defendant’s negligence in action arising out of subway train running over plaintiff.

Jaffe v. PJA Motor Corp., 678 N.Y.S.2d 503 (2nd Dept. 1998) – Product Liability: Upheld a lower court decision striking the plaintiff’s Complaint as appropriate sanction for her failure to preserve evidence crucial to the defense of the case under the “spoliation of evidence” rule.

Cofield v. NYCHA, 672 N.Y.S.2d 136 (2nd Dept. 1998) – Premises Security: Upheld the dismissal of a claim brought by a plaintiff who had been rendered quadriplegic as a result of shooting at NYCHA premises, due to plaintiff’s inability to identify his assailant as intruder who gained access to premises due to NYCHA’s negligence.

Namisnak v. Martin, 664 N.Y.S.2d 435 (1st Dept. 1997) – Motor Vehicle: Reversed the denial of summary judgment motion of driver of client’s truck in wrongful death action, where the plaintiffs failed to establish a causal connection between alleged speeding of truck and intersection collision, ruling that the driver who has the right-of-way is entitled to anticipate that other vehicles will obey traffic laws that require them to yield.

Stella v. NYCTA, 657 N.Y.S.2d 702 (1st Dept. 1997) – Fireman’s Rule: Upheld the granting of summary judgment against a police officer suing under an exception to the so-called “Fireman’s Rule,” holding that the injured officer failed to set forth facts from which it could be inferred that the client’s negligence in failing to comply with a statute or ordinance directly or indirectly caused the injuries complained of.

Graham v NYCHA, 638 N.Y.S.2d 775 (2nd Dept. 1996) – Premises Security: Reversed the denial of summary judgment to housing project owner where the plaintiff could not prove a causal connection between alleged inadequate lighting and a criminal act that began in an open-air parking lot.

DePasquale v. Morbark Industries, Inc., 633 N.Y.S.2d 543 (2nd Dept. 1995) – Product Liability Law: Reversed jury finding of 25% liability against manufacturer of wood-chipping machine upon holding that there is no duty to warn of a danger that is obvious, and ordered new trial on the basis of the trial court’s erroneous admission of evidence of the manufacturer’s post-manufacture design modification of the machine.

Santiago v. NYCHA, 633 N.Y.S.2d 68 (2nd Dept. 1995) – Municipal Law: Reversed denial of summary judgment based upon the plaintiff’s failure to adequately describe the location of accident in the Notice of Claim with sufficient particularity to enable the municipal entity to conduct proper investigation.

Chung v. NYCTA, 624 N.Y.S.2d 224 (2nd Dept. 1995) – Damages: Reduced damage award of $1.5 million to $600,000 for past pain and suffering of the plaintiff, who lost both legs after falling from a subway station platform and being struck by a subway car.

TRIAL DECISIONS

Hilton v. Independent Coach Corporation

Court: Nassau County Supreme Court
Judge: Daniel Martin
Attorney: Jeffrey Samel
Practice area: Motor Vehicle

The 71-year-old decedent with a history of epileptic seizures was walking with his wife past an on-coming school bus and was found lying dead on the roadway behind the bus, after the rear wheels of the bus apparently ran over the decedent’s head. Plaintiff's counsel presented an accident reconstruction expert, a forensic pathologist and an economics expert, while our office chose to rely solely upon the driver’s testimony that when the bus began to pass the decedent, he was fully erect and showed no sign of distress.

Demand: $450,000
Result: Defense verdict

Galvin v. Dattco, Inc.

Court: New York County Supreme
Judge: Cynthia Kern
Attorney: Jeffrey Samel
Practice Area: Motor Vehicle

The plaintiff’s vehicle was rear-ended at an intersection by our client’s bus, and claimed to have sustained a traumatic brain injury, as well as neck and back injuries. Our office argued that the alleged brain injury was not confirmed by any objective diagnostic tests, and that there was no causal connection between the claimed injuries and the rear-end collision.

Demand: $1.6 million
Result: Defense Verdict

Pall v. Arthur Brunage, Inc.

Court: Kings County Supreme Court
Judge: Edward M. Rappaport
Attorney: Jeffrey Samel
Practice area: Motor Vehicle

The plaintiff was a 46-year-old criminal defense attorney who claimed that she was crossing Ninth Avenue, in the crosswalk south of West 42nd Street in Manhattan, when her feet were run over by our client’s turning bus. She suffered crush injuries to both feet, including multiple fractures and degloving, as well as a rotator cuff tear. Our office contended that the plaintiff was liable for walking into the side of a turning bus and that the bus driver had done nothing wrong in looking ahead of him as he turned his bus.

Demand: $750,000
Result: Defense Verdict

DePasquale v. Morbark Industries, Inc.

Court: Westchester County Supreme Court
Judge: Kenneth W. Rudolph
Attorney: Jeffrey Samel

The plaintiff was an 18-year-old laborer who was operating the client’s wood-chipping machine at a private residence. He kicked at a branch that had become stuck in the in-feed chute, and his leg was pulled into the feed wheels and cutting disk. A trial was held in 1988 in which the client was represented by other defense counsel, that resulted in a liability finding against the client manufacturer of 25% and a damages award of $13,700,000. Our office obtained a reversal on appeal, and upon retrial, the jury found that although there was a defect in the machine’s design, such defect was not a substantial factor in causing the accident. The case was eventually settled for $100,000 while the plaintiff’s appeal was pending.

Demand: $2,500,000
Result: $100,000 settlement

Siena v. Dattco, Inc.

Court: New York County Supreme Court
Judge: Robert D. Lippmann
Attorney: Jeffrey Samel
Practice area: Motor Vehicle/Common carrier

The plaintiff was an elementary school teacher who was escorting her fourth-grade class on a field trip to the Museum of Natural History in Manhattan. She claimed that she was thrown to the floor of the bus, sustaining traumatic brain injury, when the bus driver stopped short for a traffic light that had turned from green to yellow. Our office argued that the plaintiff was standing in the bus and fell when the driver had to stop suddenly because an ambulance was crossing in front of the bus.

Demand: $250,000
Result: Defense Verdict

Rivera v. New York City Transit Authority

Court: New York County Supreme Court
Judge: Robert D. Lippmann
Attorney: Robert G. Spevack
Practice area: Motor Vehicle/Common Carrier

Seventeen passengers and a pedestrian sued when the operator of a Manhattan crosstown bus suddenly slumped over the wheel, while the bus crossed six lanes of traffic, went up onto the sidewalk and came to a stop only after striking the side of a building. The most seriously injured plaintiff was the pedestrian, who suffered traumatic epilepsy that has prevented her from returning to work as a Traffic Enforcement Agent. Plaintiffs attempted to present expert testimony that the bus operator apparently suffered from hypoglycemia with “premonitory symptoms,” on the basis of a Glucose Tolerance Test (GTT) that indicated low blood sugar a few hours post-accident. Our defense experts established that such GTTs are highly unreliable and are not a proper basis for the diagnosis of hypoglycemia. The jury agreed with our position that the accident was caused by a sudden and unexpected medical emergency of which the bus operator had no foreknowledge.

Demand: $5,000,000
Offer: $450,000
Result: Defense Verdict

Garnsey v. Morbark Industries, Inc.

Court: U.S. District, Northern District of NY
Judge: Thomas J. McAvoy
Attorney: Robert G. Spevack
Practice area: Product Liability

The plaintiff claimed that his fingers became caught between the belts and a pulley of the client’s wood-chipping machine after he had shut down the engine and believed that all of the machine’s parts had come to a stop. He suffered the traumatic amputation of three fingers of his left hand and claimed a 50% limitation of use of that hand and an inability to return to his pre-accident employment. Our office presented a videotape of the machine demonstrating that the continued inertial movement of the belts and pulleys could be seen and heard, and we argued that the machine was properly designed.

Demand: $1,200,000
Result: Defense Verdict

Cantos v. Pierce Coach Line

Court: Nassau County Supreme Court
Judge: Edward McCarty III
Attorney: Robert G. Spevack
Practice area: Motor Vehicle/Common Carrier

The 6-year-old plaintiff exited the insured’s school bus that was stopped in the mouth of a driveway and was struck by the co-defendant’s truck as he crossed the street in front of the stopped school bus. The plaintiff alleged traumatic brain injury. Our office argued that the client’s driver, who died prior to depositions, had left the children off at a safe place and that the sole negligence was that of the co-defendant, who struck the infant plaintiff after passing a stopped school bus.

Demand: $500,000
Result: Defense Verdict

Fox-Daly v. New York Bus Service

Court: Bronx County Supreme Court
Judge: Janice L. Bowman
Attorney: Robert G. Spevack
Practice area: Motor Vehicle/Threshold

Plaintiff was struck by the client’s turning bus while she crossed the street within a crosswalk. She alleged herniated cervical and lumbar discs, confirmed by MRI. Our office argued that the plaintiff was solely negligent for failing to observe the turning bus and that she did not sustain a serious injury within the meaning of the No-Fault Law. Although the jury found the bus driver partly at fault, a defense verdict was rendered on the threshold injury issue.

Demand: $250,000
Result: Defense Verdict

Barca v. Barney Skanska USA

Court: New York County Supreme Court
Judge: Rosalyn H. Richter
Attorney: Joshua W. Skillman
Practice area: Construction/Labor Law

The plaintiff alleged a failure to provide a safe place to work, claiming to have tripped and fallen at a construction site due to the presence of discarded pipes. He claimed to have suffered a herniated lumbar disc with radiculopathy. Our office argued our client’s lack of notice or responsibility for the discarded pipes.

Demand: $350,000
Result: Defense Verdict

Rebaza v. New York City Transit Authority

Court: New York County Supreme
Judge: Robert D. Lippmann
Attorney: Joshua W. Skillman
Practice area: Premises/Common Carrier/Municipal Liability

The plaintiff claimed to have tripped and fallen on construction debris on a subway platform, resulting in a fracture of her right humerus. Our office argued that no construction work was ongoing at the location, as well as lack of notice.

Demand: $150,000
Result: Defense Verdict

Bourne v. Metropolitan Suburban Bus Authority

Court: Nassau County Supreme Court
Judge: Ute Wolff Lalley
Attorney: Joshua W. Skillman
Practice area: Motor Vehicle

Plaintiff claimed she was seated in her parked vehicle when it was hooked and dragged by our client’s bus. She alleged to have suffered lumbar disc herniations and right shoulder impingement requiring surgery. Our office presented the testimony of the bus operator who claimed that the bus hooked the plaintiff’s vehicle when plaintiff suddenly pulled out of a parking spot.

Demand: $250,000
Result: Defense Verdict

Glinka v. New York City Transit Authority

Court: Queens County Supreme Court
Judge: Darrell L. Gavrin
Attorney: Kevin L. Bigelow
Practice area: Premises/Common Carrier

Plaintiff claimed she was caused to slip and fall as a result of a defect on a step of a staircase located in a subway station. Plaintiff presented an expert engineer, who testified that the defect measured one-half inch and required repair. Our office contended that the defect was de minimus and required no repair. Plaintiff suffered a wrist fracture and medial meniscal tear.

Demand: $400,000
Result: Defense Verdict

Whitney v. New York City Transit Authority

Court: Queens County Supreme Court
Judge: Valerie Brathwaite-Nelson
Attorney: Gabriel A. Mero
Practice area: Motor Vehicle/Common Carrier

The plaintiff was wheelchair bound and was attempting to board a bus by means of its wheelchair lift when it collapsed, causing the plaintiff to fall to the ground and to suffer a herniated lumbar disc and vertebral fracture. Plaintiff’s expert testified that the wheelchair was too large for the lift and that the bus driver should not have allowed plaintiff to board. Our office argued that the plaintiff was solely at fault.

Demand: $450,000
Result: Defense Verdict

Moroz v. 529 Fifth Company

Court: Kings County Supreme Court
Judge: Theodore T. Jones, Jr.
Attorney: Gabriel A. Mero
Practice area: Premises Liability

The plaintiff claimed that she tripped and fell over a raised and torn carpet runner in a building that was serviced by the insured. She sustained a herniated lumbar disc. Our office argued lack of notice with regard to the allegedly defective carpet runner.

Demand: $250,000
Result: Defense verdict

Randle v. New York City Transit Authority

Court: Richmond County Supreme Court
Judge: Joseph Maltese
Attorney: Gabriel A. Mero
Practice area: Common Carrier

Plaintiff and her friend claimed that plaintiff was injured when the bus they had just boarded pulled away from the bus stop at a very fast rate of speed. Plaintiff claimed herniated cervical and lumbar discs. Our office presented the bus driver, who testified that it is impossible for the bus to accelerate in such a fashion.

Demand: $150,000
Result: Defense Verdict

Morris v. New York City Transit Authority

Court: Queens County Supreme Court
Judge: Laura Blackburne
Attorney: Gabriel A. Mero
Practice Area: Premises/Common Carrier

Plaintiff claimed he slipped and fell due to ice located on exterior subway steps. Although the accident report did indicate there was slush upon the steps, our office argued that passengers constantly dragged in snow and slush from the surrounding area and that it was unreasonable to expect that station steps be maintained in a pristine condition. The plaintiff suffered a bimalleolar fracture of his left ankle that required an open reduction and internal fixation.

Demand: $350,000
Result: Defense Verdict

Hershbain v. NYCTA

Court: New York County Supreme Court
Judge: Jose A. Padilla
Attorney: Larissa Stolyar
Practice area: Motor Vehicle/Common Carrier

The elderly plaintiff claimed she was caused to fall from a bus when it moved forward as she attempted to board. She alleged lumbar radiculopathy and sciatic nerve damage. Our office contended that the plaintiff fell before entering the bus due to a pre-existing balance problem.

Demand: $1,650,000
Result: Defense Verdict

Kraut and Bershad v. MABSTOA

Court: Richmond County Supreme Court
Judge: Robert J. Gigante
Attorney: Larissa Stolyar
Practice area: Motor Vehicle

Two bus passengers alleged injuries as a result of the sudden stop of an express bus at the Verrazano Tollbooth Plaza. One plaintiff sustained a torn rotator cuff requiring three surgeries and the other claimed a herniated cervical disc with radiculopathy. Our office argued the bus driver was forced to come to a sudden stop when another vehicle crossed its path.

Demand: $600,000
Result: Defense Verdict - later sustained an appeal.

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