United States: New York Trial & Appellate Victory Alert

Our New York office has had another successful run of trial wins, appellate victories, and outstanding settlements. We have compiled some of the most interesting and important wins below.

We also welcome Robert Yodowitz to the team as a partner and senior trial attorney in our General Liability and Transportation Practices. Mr. Yodowitz specializes in defense of personal injury cases from intake through trial, including automobile and trucking accidents matters, premises liability, medical malpractice, nursing home abuse, and labor law. He has tried cases in state and federal courts in New York City and the Lower Hudson Valley and has tried to verdict over one hundred cases throughout his career. He also has experience handling high exposure civil cases in the New York metropolitan area on behalf of insurance carriers and various municipalities, many with potential exposure in the millions of dollars. We look forward to Mr. Yodowitz joining our Trial Team.

I. Trial Wins

New York Team Secures Defense Verdict in Ambulance Case

New York Partners Jim Whalen and Kevin Zimmerman obtained a defense verdict in the Bronx with a jury finding that both plaintiffs failed to meet New York's serious injury threshold despite both undergoing multiple surgeries.

The plaintiffs were passengers in the co-defendant's vehicle, which was allegedly sideswiped by our client's ambulance. Both plaintiffs received treatment to the neck and back for bulges and herniations, and also underwent an arthroscopic knee surgery following the accident.

At trial, one of the plaintiffs conceded he made no complaints regarding his knees at his first physical therapy provider for more than four weeks. He also testified that he had not seen his operating doctor since 2013, except for a visit in 2018. The other plaintiff conceded that both vehicles were moving slowly at the point of impact. She confirmed the physical therapy office she and the other plaintiff attended was across the street from her attorney's office. Further, we successfully cross-examined the plaintiffs' treating orthopedist, questioning him about his website where he appeared to solicit personal injury attorneys. Further, the orthopedist conceded that he did not know any of the details regarding the accident, including whether the plaintiffs were wearing seat belts, the severity of the impact, or what parts of the vehicles were involved.

In further support of our case, we presented testimony from an orthopedist and a radiologist. Both doctors noted the minor impact involved in the accident, as reported in the ambulance call report and emergency room records. Our orthopedist concluded that the mechanism of injury for the plaintiffs' claimed injuries was not present, and the radiologist testified that the plaintiffs' films following the accident showed no evidence of any trauma.

Both the plaintiffs' attorneys asked the jury to award in excess of $600,000. The jury was persuaded by our arguments and found that neither plaintiff sustained a "serious injury" caused by the accident under New York's threshold law (Sec. 5102(d) of the New York State Insurance Law), and never had to reach the questions concerning liability.

Despite being in an extremely plaintiff-friendly venue, we continue to have success in defending our clients in motor vehicle accidents involving minor impacts and/or side swipe accidents. Even in cases where the plaintiffs are innocent passengers, jurors are willing to accept the argument that minor collisions are not significant enough to cause the injuries alleged.

New York Team Obtains Favorable Verdict in a Case in Bronx County Involving a Plaintiff Who Had a Lumbar and Cervical Fusion

New York Partners Alecia Walters-Hinds and Sheryl Fyffe recently obtained a favorable verdict in a motor vehicle accident case venued in Bronx County.

The plaintiff, 39 years old at the time of the accident, alleged that he sustained injuries to his neck, back, and left shoulder as a result of a sideswipe motor vehicle collision. The plaintiff claimed that the defendant driver changed lanes into the path of his vehicle and caused the accident. As a result of the alleged injuries, the plaintiff underwent three different surgeries: a multiple level lumbar discectomy and fusion, a cervical fusion, and a shoulder surgery.

At the time of trial, the plaintiff was still receiving treatment, and his counsel called five doctors, including two pain management doctors. The plaintiff's spine surgeon and orthopedic surgeon both testified that the plaintiff would require future surgeries. One of the pain management doctors testified that plaintiff would need almost $500,000 in future medical care. Prior to trial, the plaintiff demanded $6 million in damages. During summations, the plaintiff's counsel went even further, suggesting an additional $3 million ($1 million for each surgery) for past pain and suffering, and "millions" for future pain and suffering.

At trial, we argued that the plaintiff had caused the accident while attempting to pass our client's vehicle with an improper lane change. Both sides called in accident reconstruction experts. On damages, to counter the plaintiff's experts, we presented our own experts who testified that the plaintiff's alleged injuries were pre-existing and not causally related to the accident. Our experts also testified that the plaintiff would not require any future surgeries.

After a month-long trial and two days of deliberations, the jury returned an extremely favorable verdict for our client, finding them only partially at fault for the accident, and assessing a net award of only $531,000 for the plaintiff (the full verdict was for $885,00).

New York Office Secure Positive Verdict in Multim-Million Dollar Construction Accident Case

New York Partner John J. Doody secured a very favorable verdict for the defendants after a 10-day damages trial in Bronx County for injuries sustained by a construction worker who had been granted summary judgment on liability pursuant NYS Labor Law Section 240(1).  The plaintiff, a union asbestos worker, sustained a displaced, comminuted fracture mid-fibular with internal fixation and subsequent hardware removal and arthroscopic procedures to the ankle and knee, for a total of four surgical procedures. He also claimed cervical and lumbar radiculopathy as a result of the accident, and psychological injury (depression due to inability to work), and received multiple epidural steroid injections, nerve blocks and trigger point injections over a three-and-a-half-year period prior to the trial.  The plaintiff claimed he was totally and permanently disabled from employment as a result of his injuries.

At trial, we argued and presented evidence that the neck and back injuries were unrelated and exaggerated, with excessive treatment, and that the plaintiff could have returned to work and work into the future. Trial evidence consisted of ten witnesses, seven experts (orthopedic surgeons, neurologists, vocational rehabilitationists, economists, pain management specialist, the plaintiff and his daughter0), and over 1500 pages of medical/treatment records.

The pre-trial settlement demand was mid-seven figures and with an offer of mid-six figures, which was rejected by plaintiff.  During the trial, another demand was made for slightly less than the pre-trial one, with a seven-figure offer made in response, again rejected. At the end of trial, the plaintiff asked jury to award damages in an amount even higher than their pre-trial demand; Mr. Doody suggested a mid-six figure award.  After two hours of deliberation, the jury came back with an award of less than 10% of the plaintiff's settlement demands before and during trial, and below the amount suggested by Mr. Doody in his summation.

II. Appellate

New York Team Obtains Appellate Victory in a Trip and Fall Case

New York Partners Sheryl Fyffe and Meredith Nolan were recently successful on appeal before New York's Appellate Division, Second Department in a trip and fall case. In the matter, the plaintiff had filed suit against our client, a property owner, alleging that, due to scaffolding erected on the sidewalk adjacent to the property, she was forced to walk into a tree well where she tripped and fell on uneven bricks and sustained multiple injuries.  The plaintiff claimed that the scaffolding narrowed the sidewalk and left no room for a pedestrian in a wheelchair walking towards her to pass, and that she therefore had no choice but to step into the tree well to allow the wheelchair to go by.

The plaintiff obtained a default judgment against the scaffolding company who did not appear in the case and we moved for summary judgment, arguing that the insured had no duty to maintain the city owned tree well where the plaintiff fallen. We further argued that the uneven bricks inside the tree well that were the proximate cause of the plaintiff's injury, and that the insured did not create the alleged dangerous condition of uneven bricks, nor did our client negligently repair the tree well. We also argued that even if the scaffold narrowed the sidewalk as alleged by the plaintiff, this merely furnished the occasion upon which the plaintiff was injured and was not the proximate cause of plaintiff's injuries. The lower court found that the plaintiff's opposition failed to raise a trial issue of fact and granted our motion for summary judgment.

On appeal, the plaintiff's counsel attempted to convince the appellate court that the plaintiff was "forced" to walk into the tree well that contained the bricks where the plaintiff fell because the scaffolding did not allow her to escape the path. The judges were not persuaded by this argument and pointed to pictures in the record showing sufficient space for the plaintiff to pass or move to allow the wheelchair to pass.

In opposition, we pointed to the fact that the plaintiff never testified that she was "forced" into the path, as counsel asserted. Rather, her testimony indicated that she saw the wheelchair coming towards her and that she wanted to move to allow the wheelchair to pass.  We also argued that evidence, including the plaintiff's own testimony, showed that the sole proximate cause of the accident was the condition of the bricks in the tree well that the adjoining landowner had no responsibility to maintain. The court agreed and affirmed the lower court's summary judgment order in favor of our client, concluding that they owed no duty to the plaintiff.

III. Summary Judgments

New York Team Secures Dismissal for Municipal Entity

New York Partner Alecia Walters-Hinds and Associate Bindu Nair recently secured the dismissal of a premises liability case in its entirety on behalf of our client, a municipal entity.

The plaintiff served a notice of claim pursuant to GML 50-e, alleging multiple injuries sustained as a result of a fall. Approximately one year later, the plaintiff filed an amended notice of claim, claiming the accident occurred three days earlier, which effectively placed the originally filed notice of claim outside the statute of limitations.

The plaintiff's counsel filed an order to show cause seeking an order deeming the amended notice of claim as properly served. We opposed, arguing that if the amended notice of claim was deemed properly served, it would bring the plaintiff's notice of claim outside of the 90-day time period in which plaintiff must bring a timely claim. Additionally, the plaintiff did not file for leave to file a late notice of claim, but rather erroneously moved to deem the already filed late notice of claim as properly served.

The court agreed that the plaintiff's request for relief was improper and dismissed the case in its entirety.

New York Team Obtains Summary Judgment in a Multi-Million Dollar Personal Injury Case Wherein the Plaintiff Was Hit by a Bus While Riding a Scooter

New York Partners Nicholas Hurzeler and Sheryl Fyffe recently obtained summary judgment in a personal injury case, utilizing the "emergency doctrine." A plaintiff filed suit against an insured's bus alleging that, while traveling on a motorized scooter, he was stuck in the rear. As a result of the accident, the plaintiff sustained numerous severe injuries, including fractures of his lower extremities and head, and claimed traumatic brain injury. The plaintiff demanded $4 million to settle.

The insured's bus was driving straight on a two-lane road, when the plaintiff's scooter swerved in front of the bus after signaling for only about one second. The accident was captured on the bus's drive-cam video system and both sides retained accident reconstruction experts. The plaintiff argued strenuously that the bus driver failed to obey a flashing yellow light, failed to observe the scooter in the right lane, and should have anticipated the plaintiff's lane change because of a stopped mail truck in the right lane ahead. The plaintiff moved for summary judgment and our office cross-moved for summary judgment. In the summary judgment motion practice, liability was hotly contested with dueling expert accident re-constructionist opinions and extensive briefing by both sides. Throughout, we focused on the video evidence that the plaintiff failed to grant the right of way and swerved directly into the path of the bus such that the driver had no way to avoid the collision, and cited case law on the "emergency doctrine."

The court ultimately denied the plaintiff's motion and granted our cross-motion on the ground that, based on the video and our accident re-constructionist's submitted evidence and opinion, under New York's "emergency doctrine" the bus driver had no realistic opportunity to avoid a collision, As such, plaintiff's compliant was dismissed.

IV. Settlements

New York Team Obtains Successful Settlement in Sharp Projection Case

New York Partner Clare M. Cunningham and Associate Gillian Holland recently obtained a successful settlement on behalf of the owner and construction manager in a construction accident case. The plaintiff, an employee of one of our client's subcontractors, was a union ironworker who tripped and fell on a bolt protruding from the ground at our client's project.

Under New York's Labor Law, there was high potential for our client to be found liable under Labor Law 241(6) Industrial Code 23-1.7(e) pertaining to tripping hazards. We argued that the bolt was embedded in the ground, was an inherent part of the work being performed, and was not a "sharp" projection based on Second Department case law.

The 43-year-old plaintiff had undergone three surgeries, including spinal surgeries, and claimed that he could never work again. He had served an economic expert disclosure alleging a significant amount in past and future economic damages, including loss of union wages and benefits. The focused analysis on the early hospital records, which revealed minimal treatment and complaints, and extensive coordination with all damages experts helped to bolster the arguments that the alleged injuries were pre-existing and not the result of the fall.

We conducted extensive investigation into the plaintiff's substantial criminal history in comparison to the hours worked for the union, which revealed that the plaintiff spent more time in prison than working as an ironworker during the 10 years preceding the accident. We created compelling charts and graphs to illustrate this history which was effective at undermining the plaintiff's entire economic damages claim. The plaintiff ultimately agreed to settle the matter for well under the sustainable verdict value for spinal surgery cases within the primary policy limits.

To view the full article please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Lewis Brisbois Bisgaard & Smith LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Lewis Brisbois Bisgaard & Smith LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions