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New York Court of Appeals
First, in Briggs Ave. LLC v. Insurance Corp. of Hannover, 11 N.Y.3d 377, 870 N.Y.S.2d 841 (2008) the Court of Appeals had its first opportunity to rule on the novel issue of whether an insured’s failure to keep its corporate address up to date with the Office of the Secretary of State, constitutes a reasonable excuse for its failure to provide notice of a lawsuit to its liability insurer. Although several intermediate level courts in New York have addressed the issue, and the New York federal courts have addressed it as well, their opinions have been conflicting, thus making the issue ripe for review by the New York Court of Appeals.
The pertinent facts were that the plaintiff insured was a limited liability company (LLC) and owned a building. While the articles of organization properly designated the Secretary of State as the insured's agent to receive service of process under New York’s Limited Liability Company Law § 301, Briggs Avenue failed to notify the Secretary of a change of address. A tenant in the building brought a personal injury action and served the summons and complaint on the Secretary of State’s office. However, due to its stale address, Briggs did not learn of the lawsuit until almost a year later when it was served directly with a motion for a default judgment. It gave notice to ICH at that time, but ICH disclaimed coverage based upon Briggs’ untimely notification of the occurrence and lawsuit.
Briggs then brought the instant action, wherein the Federal Appeals court certified to the New York Court of Appeals the question of whether ICH’s late notice-based disclaimer of coverage was valid. On behalf of the insurer, ICH, we argued that an insured’s stale address on file with the Secretary of State’s office, which precluded it from timely receiving suit papers and correspondingly furnishing timely notice of the claim to the carrier, did not excuse the insured’s delay, and that its failure to provide notice in the timely manner required by its policy, constituted a forfeiture of its right to a defense and indemnification. The Court of Appeals agreed with our contentions, and declared that ICH (now Praetorian Insurance Company) had no duty to defend or indemnify its insured in the underlying personal injury action.
And in Continental Cas. Co. v. Terrance Stradford, 11 N.Y.3d 443, 2008 NY Slip Op 9256 (2008), the Court of Appeals, in response to our appeal on behalf of Continental, reversed a determination of the Appellate Division which had declared that as a matter of law, Continental failed to timely disclaim coverage to its insured in two underlying dental malpractice actions, under a professional liability policy of insurance. In doing so, the Court of Appeals agreed with and accepted our contentions that since the insured had punctuated periods of non-compliance with sporadic cooperation and promises to cooperate, a disclaimer based on non-cooperation required a longer period of time to substantiate than that for disclaimers based upon policy exclusions and breached policy conditions.
The Court of Appeals ruled that a fact question remained as to the time required for the insurer to evaluate the insured's conduct in the underlying claims and that the reasonableness of an approximately two-month delay to analyze the pattern of obstructive conduct that permeated the insurer's relationship with its insured for almost six years presented a fact question that precluded summary judgment.
White, Fleischner & Fino also had numerous victories in the intermediate appellate courts, as well as at the trial court level, in both the State and Federal courts of New York, New Jersey and Pennsylvania.
Appellate Division Wins
In Board of Hudson River-black Riv. Regulating Dist. v. Praetorian Ins. Co., 56 A.D.3d 929, 867 N.Y.S.2d 256 (3d Dep't
2008), the underlying plaintiff suffered catastrophic injuries on property controlled and maintained by plaintiff. When plaintiff received a Notice of Claim for personal injuries and damages relating to the incident, it failed to forward it to defendant, its liability insurer, or otherwise notify defendant of the occurrence.
One year later, plaintiff was served with a summons and complaint in the underlying personal injury action and forwarded it to defendant, which disclaimed coverage based upon plaintiff's failure to notify it of the occurrence "as soon as practicable" and to "[i]mmediately" send it a copy of the Notice of Claim, as required by the insurance policy. Plaintiff then commenced this declaratory judgment action seeking to compel defendant to defend and indemnify it in the underlying action.
After joinder of issue, both parties moved for summary judgment. Finding that plaintiff failed to give timely notice as a matter of law, Supreme Court granted our summary judgment motion on behalf of the defendant insurer. The insured appealed the decision, but the Appellate Division affirmed the trial court’s determination, accepting our arguments that even if, as contended by plaintiff, it had forwarded the Notice of Claim to its insurance broker in a timely manner, notice to the broker did not constitute notice to the insurer. The court rejected the contention advanced by plaintiff that the Notice condition was ambiguous, because it suggested that “Us” (as in “you must notify Us as soon as practicable…” could mean not only the carrier itself, but also the insured’s own broker.
The Appellate Division also rejected the plaintiffs’ contention that Praetorian could not validly disclaim coverage absent proof that it had suffered actual prejudice as a consequence of the delay in notification. Finally, the Appellate Division rejected plaintiff’s purported excuse that the delay was attributable to its legal counsel’s inadvertent failure to forward the Notice of Claim to the insurer. According to the court, “mere neglect or inadvertence on the part of plaintiff's employee is not a valid excuse”.
Kozlowski v. Grammercy House Owners Corp., 46 A.D.3d 756, 848 N.Y.S.2d 338 (2d Dep't, Dec. 2007) was a Labor Law case where the trial court granted summary judgment in plaintiff's favor on the issue of defendant's liability pursuant to Labor Law 240(1) (The Scaffold Law). We appealed the trial court's order and decision, contending, among other things, that it was not any defective condition of the plaintiff's ladder that proximately caused his accident but rather, that the plaintiff's own conduct in allowing the steps and feet of the ladder to become slippery (as a result of the accumulation of the wallpaper paste he was using, and which he conceded he was responsible for removing from his ladder), was the sole proximate cause of the accident. The Appellate Division agreed with our argument that at the very least, a triable issue of fact existed in this regard, and it therefore reversed the award of summary judgment in the plaintiff's favor on the issue of defendant's strict liability under the Labor Law.
In 639 Bushwick, LLC v. American Western Home Ins. Co., __A.D.2d__, 869 N.Y.S.2d 221 (2d Dept.
2008), we obtained a reversal by the Appellate Division of a trial court order that denied American Western’s motion for summary judgment. The motion sought a declaration that American Western had no duty to defend or indemnify its insured, 639 Bushwick, LLC in an underlying personal injury action, because it failed to furnish timely notice of the lawsuit. Contrary to the determination of the trial court, the Appellate Division ruled that American Western Home had made a prima facie showing of its entitlement to judgment as a matter of law by submitting an uncontroverted affidavit of service and other evidence demonstrating that 639 Bushwick had been served with the underlying plaintiff’s suit papers several months before 639 furnished notice of the lawsuit to American Western Home, and that the insured’s conclusory and unsubstantiated denial of receipt of the papers was insufficient to rebut the presumption of proper service. Therefore, according to the Appellate Division, American Western’s disclaimer of coverage was valid, and the trial court had erred in denying our motion for summary judgment on American Western’s behalf.
In Gleckel v. 49 West 12 Tenants Corp., 52 A.D.3d 469, 859 N.Y.S.2d 712 (2d Dept. 2008) we represented defendant cooperative board and appealed a trial court order which denied its cross-motion for summary judgment in plaintiff trust beneficiaries' action to recover damages for breach of contract. The pertinent facts were that when a tenant/shareholder of the residential cooperative apartment died, his will named his nephew and three others as trust beneficiaries. All of the trust beneficiaries agreed to allow the nephew to purchase the cooperative apartment.
When the cooperative board denied the nephew's application, the trust beneficiaries commenced an action alleging that the board had unreasonably withheld its consent to the proposed purchase. The Appellate Division reversed the trial court’s denial of the Board’s motion, agreeing with our position (1) that the Board had demonstrated the nephew failed to show he was financially responsible and (2) that consequently, the Board’s withholding of consent was reasonable, as it had a legitimate relationship to the welfare of the cooperative.
Successes at the Trial Court Level
Federal Court
In American Insurance Company a/s/o Mariah Carey v. Corn Associates, LLC, et al, (United States District Court, Southern District of New York) which involved the flooding of a condominium unit owner’s apartment, we obtained summary judgment on behalf of defendant, and a corresponding dismissal of insurance carriers' $1.75 million subrogation recovery effort. The court agreed with our contention that the waivers of subrogation in the condominium by-laws barred the lawsuit.
Zurich Am. Ins. Co. v. Felipe Grimberg Fine Art, 2008 U.S. Dist. LEXIS 10544 (S.D.N.Y. Feb. 11, 2008) was a coverage action arising out of a stolen painting. During the course of the lawsuit, Zurich American and Grimberg filed cross-motions for summary judgment. On behalf of Zurich American, we argued that summary judgment declaring Zurich American not liable for the loss should be granted to it because (1) Grimberg was bound by prior judicial admissions with respect to the Painting and was estopped from denying these admissions; and (2) the painting was not Property Insured under the Zurich American policy at the time of loss.
As for Grimberg, he argued that summary judgment should be granted in his own favor on the grounds that (1) the theft of the painting was covered because it had been stolen from him as part of a criminal scheme, trick or larceny by false promise; and (2) for the purposes of insurance coverage, title to the painting never passed from Grimberg to its new owner.
The trial court (Unites States District Court for the Southern District of New York) granted our motion on behalf of Zurich American and denied the insured's cross-motion. In granting the relief we requested, the court agreed with Zurich American's contention that because Grimberg had asserted numerous times in another proceeding concerning ownership of the painting that the painting had been sold prior to the loss at issue in this suit, the doctrine of judicial estoppel, which prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously advanced by that party in a prior legal proceeding, precluded him from now denying the truth of those statements. The court further concluded that since Grimberg was judicially estopped from advancing the position that he did not sell the painting prior to the loss date, no triable issue of fact existed with respect to the painting not being Property Insured by the Zurich American policy.
And in WGJ Holdings, Inc. And JW Enterprises, Inc., V. Seth Greenberg, Et Al., 2008 U.S. Dist. LEXIS 850 (S.D.N.Y.
2008), the United States District Court for the Southern District of New York granted our motion for summary judgment in this unfair competition, false/deceptive advertising, dilution and misappropriation of trade secrets case. The action arose out the sale of a baked goods company and the subsequent use of the “Greenberg” name in a new venture. The court found that releases previously executed by the plaintiffs barred their claims for unfair competition, false advertising and dilution. Additionally, the court held that the plaintiffs failed to make out a prima facie claim of misappropriation of trade secrets and therefore dismissed that claim on summary judgment as well.
State Court
Henner v. Everdry Marketing and Management, Inc., (Supreme Court of the State of New York, Monroe County) arose out of an oil spill at the plaintiff’s home, caused by waterproofing work performed in the plaintiffs’ basement by defendant Everdry. Our office represented Everdry’s liability insurer, Gemini Insurance Company, in the plaintiffs’ Direct Action against it, which the plaintiffs commenced pursuant to New York’s Oil Spill Law (Navigation Law Sec. 190)
We moved to dismiss the plaintiffs’ Complaint on the grounds that, among other things, the plaintiffs failed to preserve their right to assert a Direct Action against Gemini because they did not exercise reasonable diligence in identifying Gemini as Everdry’s liability insurer and therefore, their four year delay in furnishing notice to Gemini of the oil spill and their ensuing lawsuit against Everdry was unreasonable as a matter of law, and relieved Gemini of any obligation to indemnify the plaintiffs for their loss.
The Court granted our motion, accepting our contentions that “reasonable diligence” requires more than the few letters the plaintiffs sent to Everydry (and to which Everydry never responded). Additionally, the court agreed with us that while Gemini was not required to prove it was prejudiced by the delay, prejudice to it was nevertheless patent, and compelled dismissal of the Complaint, since by the time Gemini learned of the lawsuit, the plaintiffs had already obtained a default judgment against Gemini and conducted a full hearing at inquest, in Gemini’s absence, on the amount and nature of their damages, which exceeded half a million dollars.
Although we also argued that the claim, which sought recovery not only for property damage associated with the oil spill, but also for nuisance, trespass, diminution in value of the property and “stigma” damages, was excluded from coverage on the bases of the policy’s pollution and work product exclusions, the court held that it need not reach those issues because it was electing to dispose of the lawsuit exclusively on the basis of the plaintiffs’ unreasonable delay in furnishing notice to Gemini.
In Board of Managers of 1235 Park Condominium v. Clermont Specialty Managers, et al. (Supreme Court of the State of New York, County of New
York), the plaintiff insured sought a declaration that it was entitled to a defense and indemnification in an underlying personal injury suit arising under New York's Labor Law 240 (the Scaffold Law). We represented the defendant insurer, which disclaimed coverage on the ground that the Condominium had breached its policy's notice conditions by failing to furnish prompt notice of the occurrence. While the insured asserted that its delay in providing notice was excused because it had a reasonable belief that no claim would be asserted against it (since it did not appear at the time of the incident that the plaintiff suffered anything but a minor injury as a consequence of his fall), the court rejected the condominium's contention. Instead, the court agreed with our assertion, in the summary judgment motion we filed on the carrier's behalf, that the condominium's purported excuse for the delay was unreasonable as a matter of law, because it failed to conduct a diligent investigation to support the claimed reasonable belief that no claim would be asserted.
In support of the motion, we relied on evidence that the condominium had been advised at the time of the accident that the plaintiff had been taken to the emergency room by his coworkers and never returned to work, yet the condominium failed to take even a single follow-up step after the accident date to inquire into and ascertain the plaintiff’s condition and whereabouts, and/or why he did not return to work. We also relied upon firmly established New York caselaw which holds that any time a property owner or general contractor-insured becomes aware of a worker’s fall from a ladder on its premises, it must reasonably anticipate that a claim may be asserted, and correspondingly furnish notice of the incident to its liability insurer. The court in all respects granted the motion and thereafter denied the condominium’s motion to reargue.
In Lewis v. City of New York (Supreme Court, Bronx County) our office represented the City of New York in this wrongful death case. We recently settled the action quite favorably ($150,000) during trial. The plaintiffs’ pre-trial demand was $6,000,000. The incident giving rise to the lawsuit occurred at the 1996 West Indian Day Parade in Brooklyn. The decedent died as a consequence of being run over and crushed by the rear wheels of a parade float. He was 33 years old at the time of death and left behind two dependent children who were 18 months and 6 months old at the time. The plaintiffs alleged that he died as a consequence of the City’s negligence in operating and controlling the parade and its route. They also asserted claims for assault and battery, gross negligence, and violation of the decedent’s Civil Rights. Their Complaint sought compensatory and punitive damages totaling $70 million. We argued at trial that the accident was not caused by any conduct on the part of the City and its employees, but rather, that the decedent’s death resulted from his own intoxication and assumption of risk when he breached the security barriers along the parade route.
Smith v. Bywise Holding, LLC (Supreme Court of the State of new York, Kings County) arose out of a slip and fall accident on snow and ice that occurred while the plaintiff, a New York City Transit Authority conductor, was walking along the public sidewalk adjacent to/abutting the defendant’s property. On the date of the accident, the plaintiff was 44 years old. As a consequence of his fall, the plaintiff suffered a bimalleolar ankle fracture that required open reduction/internal fixation surgery. At trial of the action in 2008, the jury found defendant liable and awarded the plaintiff significant damages for his past and future pain and suffering, as well as his past and future lost earnings.
On behalf of the defendant property owner, we made a post-trial motion seeking to set aside the verdicts for past ($195,866.00) and future ($1,457,291.00) lost earnings on the ground that they were against the weight of the evidence at trial and not supported by the reasonable degree of certainty the law requires in order to sustain such awards. The post-trial motion also sought to reduce the jury’s future pain and suffering award from $600,000 to $175,000 on the ground that the jury’s verdict of $600,000 to compensate the plaintiff for his future pain and suffering deviated materially from what could be regarded as reasonable compensation for his injuries.
The trial court issued a post-trial Order that in all respects granted our motion, and also set aside the future medical expense award on the basis that it was speculative.
In Weichert Realtors Amer. Prof. Inc. v. Zurich North America we obtained summary judgment last December on behalf of Zurich North America in New Jersey Superior Court, for a loss involving employee theft in the form of a bookkeeper’s forged checks. The court, in granting our motion, denying the insured’s cross-motion, and dismissing the Complaint, agreed with our contention that the Exclusion for Acts of Employees, Directors, Trustees or Representatives” expressly excluded coverage for the plaintiff’s-insured’s claim, and that the exception to the exclusion for “acts by ‘employees’ that are covered by Employee Dishonesty Coverage” was inapplicable.
In Diaz v. C-Town Supermarket (Supreme Court of the State of New York, Bronx County) we obtained a summary judgment dismissal of the plaintiff’s Complaint against defendant supermarket. Plaintiff in this case alleged that she slipped and fell on egg yolk in the aisle of the supermarket. She suffered a shoulder injury requiring surgery. In the lawsuit, she served as her own notice witness, claiming to have observed a sticky substance on the floor of the supermarket aisle about 15 minutes prior to her accident. In response to our motion, the trial judge agreed that there was no evidence in the record to establish that C-Town had actual and/or constructive notice of the alleged broken egg. He also accepted our contention that the plaintiff’s attempt to use an errata sheet in which she changed her deposition testimony in order to establish notice, was insufficient to create a genuine (as opposed to feigned) question of fact.
Hu v. Children’s Corner Nursery School (Supreme Court of the State of New York, Rockland County) involved an infant plaintiff who fell off of a toddler bicycle while at school. Our office represented the school in his ensuing lawsuit. The infant plaintiff’s mother argued that the school negligently supervised her child. At trial of the action, she testified that there were several occasions when she saw kids riding the toy bikes improperly, but she conceded on cross-examination that she never mentioned these incidents to any of the school’s staff. Further, she admitted that she did not withdraw her son from the school after seeing these incidents.
We made a directed verdict at the close of the plaintiff’s evidence, contending there was a lack of sufficient evidence to demonstrate negligence on the part of the school. The court initially reserved decision but ultimately sent the case to the jury, which returned a defense verdict in favor of the school.
Ripka v. Assurance Company of America (Supreme Court of the State of New York, Nassau County) involved a claim by homeowners for property coverage they contended they were owed under a builder’s risk insurance policy. On behalf of the insurer, we argued that the claims were entirely embraced by the policy’s mold and dampness exclusions and therefore, were not covered by the policy. The court agreed with our position and dismissed the plaintiff’s Complaint.
Katz v. Certain Underwriters at Lloyd’s of London (Pennsylvania Court of Common Pleas, Philadelphia
County), was a Pennsylvania case involving a fire loss claim under a property policy of insurance. We obtained summary judgment dismissing a claim under the policy terms concerning additional coverage for debris removal costs. The court adopted our arguments regarding the interpretation of the policy language with the result that the insured's recovery for the substantial amount of debris removal costs was limited to a relatively nominal amount that was just a small fraction of the amount claimed.
In Leems Corp. v. Ho Nam Yun d/b/a Grand Construction (New Jersey Superior Court, Bergen County) we obtained summary judgment on behalf of Alea London, Ltd., and a corresponding declaration that it was not obligated to defend or indemnify its insured contractor in an underlying lawsuit. The grounds for the motion were that the insured made material misrepresentations in its policy application that rendered the coverage void as of its inception.
Suhina v. 780 East 2nd Street Co. (Supreme Court of the State of New York, Kings
County), was a personal injury case involving multiple plaintiffs and decedents who were either seriously burned or died in an apartment fire. Plaintiffs alleged there was no smoke detector installed in their apartment. We obtained summary judgment on behalf of the defendant apartment owner, by presenting evidence that disproved the plaintiff’s theory of liability and also demonstrated that absence of a smoke detector did not, in any event, proximately cause the plaintiffs’ injuries/deaths.
In Bethea v. Case Construction (Supreme Court of the State of New York, Bronx County) our office won summary judgment on liability, and a corresponding dismissal of this case, where the plaintiff claimed he suffered back injuries requiring a fusion surgery after falling on a flight of stairs while pulling boxes up the steps. He alleged that he slipped because there was construction dust all over the stairs from the nearby elevator installation work being supervised by our client.
The court awarded summary judgment in our favor, agreeing with our contention that the plaintiff’s own statements that he made to his employer and his treating physicians shortly after the accident indicated that his injury occurred due to the weight of the boxes he was carrying up the flight of stairs, and not because of any slippery condition of the steps. The trial judge also accepted our argument that the plaintiff’s subsequent deposition testimony, which contradicted the statements he had previously made to his employer and physicians, and was tailored to establish a basis for liability, was feigned and insufficient to give rise to a genuine issue of fact.
In DiBenedetto v. Hillesheim (Superior Court of New Jersey, Law Division, Atlantic
County), our office obtained summary judgment on behalf of Certain Interested Underwriters at Lloyd’s. and a declaration that Underwriters were not obligated to defend or indemnify their insured in an underlying action allegedly arising out of at “attack” by Underwriters’ insured upon the underlying female plaintiff. The court granted the motion on the basis of the policy’s Intentional Acts Exclusion, and also on the ground that the attacker did not satisfy the policy’s definition of “an insured”.
Lahchakov v. Pruzan (Supreme Court of the State of New York, Queens
County), was a car accident case where we won summary judgment in favor of defendant on the issue of his non-liability for the near fatal accident that has left the plaintiff comatose. In this case, the plaintiff suffered a head injury that occurred during the accident. His estate sued the driver of the vehicle in which he was passenger, the vehicle his driver rear-ended, and the owner of the vehicle which was sideswiped. Representing the owner of the sideswiped car, we moved for summary judgment, seeking dismissal of the Complaint on the ground that it was the driver of the plaintiff’s vehicle that proximately caused the accident when it operated the vehicle in violation of New York’s Vehicle and Traffic Laws, and that our client was, as a matter of law, in no manner negligent with respect to the happening of the accident.
The trial court granted our motion and dismissed the Complaint, notwithstanding minor differences in the testimony offered by and among the co-defendants. The court accepted our argument that the differences in the testimony were immaterial to the issue of liability and our client’s lack of negligence with regard to the happening of the accident.
Napier v. Taglieri (Supreme Court of the State of New York, Suffolk County) was a motor vehicle accident case where we obtained a defense verdict at trial on behalf of the operator of the automobile that collided with the plaintiff’s car. The plaintiff in this case was driving eastbound and as he approached an intersection, veered into a lane that was designated as a left turn lane. While in that lane his vehicle collided with the defendant’s westbound vehicle. As a consequence of the accident the plaintiff sustained significant injuries to his face, including a comminuted fracture of the mandible, a fractured jaw, keloid scars, and facial disfigurement.
He contended at trial that defendant failed to signal his intention to make a left turn, thereby causing the collision. On behalf of the defendant, however, we established at trial that the plaintiff was intoxicated at the time of the accident. Based upon the proofs submitted, the jury rendered a defense verdict.
Campisi v. Somerset Woods Associates, LLC (Supreme Court, Suffolk
County), was a personal injury case tried by our office late last year. We represented defendant apartment complex owner who was sued by the plaintiff after he slipped and fell while climbing over a chest-high snow bank with his dog, in order to access the complex's dog walk area. The large apartment complex was on over 16 acres and had many internal streets, sidewalks and parking lots. Somerset established at trial that its practice, when there is a large snowfall such as the one that occurred during the days preceding the plaintiff's accident, is to first clear the main walkways inside the complex. It then removes snow from the entrance paths leading into the individual apartments. Afterwards, it shovels and plows nine or ten garbage dump areas. Next, Somerset salts the sidewalks inside the complex.
After these critical, high pedestrian/motor vehicle areas are cleared, the maintenance crew plows and shovels the dog walk area. Plaintiff admitted at trial that he could have walked just a few hundred feet further, along a cleared area, to walk his dog off of the premises in a different, easily accessible area, instead of climbing over the snow drift. We argued that plaintiff's own reckless conduct and assumption of risk were the sole proximate cause of his fall, as opposed to any negligence on the part of Somerset in clearing the large quantities of snow on the premises. Based upon these arguments, the jury found Somerset only 1/3 liable for the accident, and the plaintiff himself 2/3 responsible for his injuries. (We are currently in the process of appealing that portion of the verdict which found Somerset even partially at fault with respect to the happening of the accident.)
In Rokitowski v. City of Beacon (Supreme Court of the State of New York, Dutchess County) we represented the City of Beacon, which was sued after the plaintiff tripped and fell on a city sidewalk. The court granted our motion for summary judgment, and dismissed the Complaint against the City of Beacon on the ground that the City lacked notice of the allegedly defective condition of the sidewalk and also on the ground that the City could not be held responsible for its alleged act or omission in failing to oversee the backfill and/or inspect the property at the time the installation of the utility pole in the sidewalk was completed.
In Familette v. Capiello (Supreme Court of the State Of New York, County of
Suffolk), a car accident case, we represented the employer of a man who the plaintiff alleges negligently and carelessly entered into the roadway and started directing traffic. She claimed that the accident occurred when she swerved to avoid him. On behalf of the traffic-directing pedestrian’s purported employer, we moved for and obtained summary judgment dismissing the complaint.
The court accepted our contention that any conduct on the part of the employee did not cause or contribute to the accident because the plaintiff herself testified that the accident occurred several moments after she had already swerved back into and was fully established in her own lane of traffic, just as she had been prior to the pedestrian entering the roadway.
Heymann v. Leveille (Supreme Court of the State of New York, Rockland County) was another car accident case where we obtained a summary judgment dismissal of the plaintiff’s Complaint. Our office represented the owner of a rented vehicle whose driver was involved in the accident. We moved for and obtained summary judgment on the grounds that there was no evidence of any mechanical problems with the vehicle sufficient to give rise to direct liability, and the Graves Amendment (49 U.S.C. 30106) eliminated vicarious liability on the part of the owners of rental vehicles.
In Mortenson v. Shea (Supreme Court of the State of New York, County of New
York), a legal malpractice case, we represented the defendant attorney and obtained an order dismissing the complaint against him. The Complaint alleged two causes of action: (1) legal malpractice for failing to timely bring a legal malpractice action against a different attorney, and (2) the unauthorized practice of law in New York. The court agreed with our contentions that the plaintiff could not establish that “but for” the attorney’s alleged negligence, the plaintiff would have won a malpractice action against the other attorney.
Heustis v. Eichner (Supreme Court of the State of New York, Essex County) was a medical malpractice case where our office represented an eye doctor. The plaintiff died during the course of the litigation. We sought dismissal of the Complaint on the basis of the plaintiff's estate's failure to prosecute the action because more than three years after the plaintiff's death, the estate still had not appointed a representative to prosecute the lawsuit. The court granted the motion.
In Ain v. CAC Industries and City of New York (Supreme Court of the State of New York, Queens County) our office, representing the City of New York and one of its contractors, participated in a ten day hearing on liability and damages. Plaintiff claimed the City and its contractor negligently damaged his beachside home during activities associated with storm water sewer installation and sanitary sewer upgrade. The Special referee found no liability on the ground that plaintiff failed to sustain his burden of proof that either the City or the contractor improperly performed the work. The Referee also found that plaintiff had failed to establish a causal connection between the work and the damage observed at his home.
Williams v. White Castle (Supreme Court of the State of New York, New York County) is the perfect example of “winning on a technicality” In this case where the plaintiff allegedly slipped and fell on the floor of a White Castle restaurant, due to a hazardous condition thereon, we obtained a dismissal of the plaintiff’s Complaint based upon her procedural failure to timely provide authorizations and a Bill of Particulars.
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