On May 12, 2020, Kenneth S. Merber and Peter J. LoPalo obtained summary judgment and the complete dismissal of Plaintiff’s product liability claims suit filed in the Superior Court of New Jersey, Essex County.
Plaintiff alleged that she sustained serious physical injuries including burns after she was served a hot beverage from a Dunkin’ Donuts franchise. Plaintiff alleged the cup and/or lid were defective. She also alleged the various defendants were negligent. GVK’s client was is a distributor for Dunkin’ Donuts franchises and was alleged to have manufactured the subject products and placed them into the stream of commerce.
Kenneth and Peter successfully defended the suit by demonstrating that their client was not a manufacturer of the subject cup and lid. They further proved that their client was entitled to the Product Seller Immunity Provisions under the New Jersey Products Liability Act, N.J.S.A. 2A:58C-9 and demonstrated that National DCP exercised no control over the design, manufacturing, packaging or labeling of the cup and lid, was not aware that the subject cup and lid could cause harm and did not create a defect that contributed to the subject incident.
Plaintiff, a 46-year-old union maintenance worker alleges that she was caused to slip and fall on soap in a bathroom for which she was responsible to clean. As a result of the accident, plaintiff alleged multiple injuries, the most significant of which was a cervical herniation with radiculopathy for which she underwent a fusion procedure.
Plaintiff was in the process of cleaning the bathroom at the time of the accident. We represented the building management company which had no relationship to plaintiff or plaintiff’s employer. After trying for years to settle the case for litigation costs without any response from plaintiff’s counsel, at the conclusion of discovery we filed a motion for summary judgment seeking dismissal on multiple grounds, including that plaintiff is barred from maintaining a cause of action because she was injured cleaning the very condition she was hired to remedy. We also moved for dismissal under Espinal.
During the pendency of the motion the parties conferenced with the Court regarding settlement. Plaintiff’s counsel advised there was a workers’ compensation lien in excess of $200,000 and that his client was looking for fair compensation to allow her to repay the lien and compensate her for the fusion procedure and 16 years of lost union wages and benefits. Knowing the strength of the motion, we viewed settlement as nuisance value and indeed, after oral argument, the Court dismissed plaintiff’s Complaint, citing both of our arguments as the basis for its decision.
GVK Partner Matthew Levy obtained summary judgment in Supreme Court, New York County, on behalf of a residential building owner and managing agent before the Preliminary Conference and before any depositions.
Plaintiff claimed that she was injured when a falling branch from a tree located on the sidewalk struck her. Plaintiff sued the abutting building owner and managing agent in addition to the City of New York and New York City Department of Parks and Recreation. Prior to the commencement of the lawsuit, the plaintiff gave sworn testimony at a 50h hearing in which she testified how she was struck by the falling tree branch. This testimony was used in support of the motion.
We argued that building owners do not have a duty to maintain the trees or tree wells located on the sidewalks abutting their buildings pursuant to NYC Administrative Code 7-210. We further argued that the New York City Department of Parks and Recreation is responsible for the “planting, care and cultivation of all trees” pursuant to NYC administrative Code 18-104. Plaintiff’s counsel and the City of New York opposed the motion by arguing that the motion is premature.
The motion was granted by Justice Verna Saunders on January 24, 2020. The Judge agreed that the New York City Department of Parks and Recreation has exclusive jurisdiction of the planting, care and cultivation of the trees. The Judge did not believe that the motion was made prematurely.
GVK partner Bryan Schwartz and associate Krystina Maola obtained summary judgment pre-deposition in Supreme Court, Bronx County in a trip and fall claim.
The plaintiff, an employee of New York Presbyterian Hospital, alleged she tripped and fell over a wheelchair lift attached to an ambulette lowered to the ground in preparation for loading a wheelchair patient from the hospital for transport. As a result of the accident, the plaintiff sustained several fractured ribs and soft tissue injuries to her neck and back. There was also a worker’s compensation lien in excess of $18,000.
In support of the summary judgment motion, we argued the wheelchair lift was not inherently dangerous when situated at the entrance of the hospital and was an open and obvious condition that the plaintiff – a hospital employee – should have clearly noticed prior to the accident. The wheelchair lift, along with its handles, were lined in yellow reflective tape.
In opposition to the motion, the plaintiff provided an affidavit claiming that while she was familiar with ambulances dropping off and picking up patients in the area of her accident, “optical confusion” between the yellow curb and yellow lined edge of the wheelchair lift immediately adjacent to the curb caused her not to see the lift. She further claimed the ambulance driver improperly left the wheelchair lift unattended.
The court dismissed the plaintiff’s claims against the defendant prior to depositions. Specifically, the court rejected the plaintiff’s optical confusion argument, holding plaintiff’s inattentiveness caused the accident, and that there is no “industry standard” regarding unattended wheelchair ramps to support her claim.
Sherri A. Jayson recently won an appeal in the Appellate Division, Second Department in a case venued in Kings County, resulting in dismissal of this lawsuit. The plaintiff was struck by the defendant’s vehicle while crossing the street. As a result of the accident, the plaintiff claimed that she sustained a tear and impingement to her left shoulder for which she underwent surgical repair.
Sherri originally filed a motion for summary judgment with trial court, arguing that plaintiff’s alleged injuries were not caused by the accident and, alternatively, that her injuries did not constitute “serious injuries” as defined by New York Insurance Law § 5102(d).
Relying solely on the records of the plaintiff’s treating providers in support of the motion, the trial court (Wooten, J.) denied the motion for summary judgment holding that the defendants failed to make a prima facie case of entitlement to summary judgment when they failed to include certified copies of the plaintiff’s medical records.
Sherri filed an appeal of the trial court’s decision arguing that a defendant may rely solely on the unsworn and uncertified records of a plaintiff’s treating physicians to make a prima facie showing of entitlement to summary judgment. The Appellate Division agreed. It reversed the decision of the trial court stating that the trial court “should have granted the defendants’ motion for summary judgment dismissing the complaint” based on a lack of proof both as to causation and serious injury due to an unexplained gap in treatment.
Kenneth S. Merber obtained a complete victory after a week long trial of indemnification/loss transfer claims in the Superior Court of New Jersey, Mercer County (Trenton, NJ). Mr. Merber represented a real estate developer in a lawsuit involving a catastrophic loss after a construction worker fell from an unguarded balcony and suffered quadriplegia.
Mr. Merber negotiated a settlement of the claims with the claimant at a mediation prior to trial. He was then tasked with recovering money paid by GVK’s client’s insurer from other parties and sources of insurance. Mr. Merber and his team recovered the policy limits plus legal fees from the insurer who provided coverage from the contractor retained by GVK’s client. He then accepted the assignment of that contractor’s claims against Plaintiff’s employer.
After the claimant’s employer refused to contribute to the settlement and its out of state insurer disclaimed coverage for the subject loss, Mr. Merber and GVK prosecuted their claims at a jury trial. After producing 7 witnesses to prove the employer was negligent and just prior to the presentation of summations, the employer’s insurer, fearing an excess verdict and bad faith claim against its insured, tendered its 7 figure policy limit. Mr. Merber also recovered six figures in attorneys fees above the employer’s policy limits to resolve the case.
Kim H. Townsend recently obtained a defense verdict in a Brooklyn premises liability case in which plaintiff fell into an uncovered, 4-foot-deep access pit and thereby sustained knee and neck injuries requiring cervical fusion and likely knee replacement surgery.
We represented a concrete and excavation company who performed snow removal services in winter months and, on the date of accident, accidentally removed a 350 lb. steel plate which was covering the access pit in question, all of which was confirmed by surveillance video. The plow driver, apparently unaware that his plow had struck and moved the 350 lb. metal plate, thereby exposing an open hole, continued plowing inadvertently filling up the pit with icy water and slush making it invisible to pedestrians and drivers alike.
Kim argued that notwithstanding our client indisputably displaced the metal plate from the pit and exposed the open hole, the owner of the premises and the manager of the sport facility, were solely responsible for the occurrence for failing to maintain the roadway in a safe condition and allowing the steel plate to rise above deteriorated asphalt, thereby allowing the condition which made it possible for the plow blade to remove the steel plate.
After 45 minutes of deliberation, the jury unanimously exonerated our client and found the owner and the manager each 50% responsible for the settlement value. Prior to trial, plaintiff’s demand was $4,500,000, after the liability verdict the case was settled for $1,500,000 by the 2 remaining defendants.
Matthew J. Vitucci recently obtained a directed verdict after a damages only trial in Kings County. The case involved an impact between our client’s left-turning tractor trailer and the vehicle in which plaintiff was a passenger.
The plaintiff and operator of the car was on their way to a nightclub in Manhattan with a friend whereupon they stopped for traffic in the left of lane of the two-lane roadway. At this time, our client’s tractor trailer attempted to make a left-hand turn behind plaintiff’s stopped car and in the process of turning the trailer portion of the truck made contact with the car’s left rear. Plaintiff described a heavy impact which lifted the car off the ground and tore off the vehicle’s bumper and in the process forced plaintiff’s body—despite her wearing of a seatbelt—to the right side of the car causing her head, neck, elbow and right knee to make contact with the right-side door and dashboard.
Plaintiff claimed to have sustained herniations and bulges to her neck and lower back and a torn meniscus to the right knee. Plaintiff underwent surgery to the right knee. At trial, her expert maintained that plaintiff developed degenerative changes post-surgery which would eventually require a knee replacement. He further maintained that plaintiff will require a cervical discectomy and fusion and the same for her lower back.
At trial plaintiff was confronted with the fact that she had been involved in several prior and subsequent accidents wherein she made claims of injury to her back and neck; it was pointed out on cross that plaintiff was less than forthright in her prior testimony regarding these claims. It was further pointed out that plaintiff made no complaints other than that she suffered from mild low back pain to the responding EMS technicians and hospital personnel. It was pointed out to the jury that plaintiff made no complaints regarding her knee to hospital personnel even though she was ambulatory at the scene and at the hospital. It was also argued to the jury that plaintiff’s taking a job as a mail carrier several years after the accident speaks to a conclusion that her future damages are either negligible or non-existent.
Matt argued to the jury that plaintiff’s taking a job as a mail carrier several years after the accident speaks to a conclusion that her future damages are either negligible or non-existent. In summation plaintiff’s counsel asked the jury for 1.75 million. The jury returned an award of 60k past pain and suffering and 1k for future. Following the verdict, the Judge issued a directed verdict in favor of the defendants as plaintiff failed to show that she suffered from a motion restriction that breaches the threshold.
On October 29, 2019, Kenneth S. Merber and Peter J. LoPalo obtained summary judgment in favor of GVK’s client in a lawsuit filed in Hudson County Superior Court. Plaintiff alleged that he sustained significant life altering injuries to his feet while working on a construction project in Jersey City, New Jersey. Our client was the general contractor/construction manager of the project. Plaintiff was employed by a subcontractor that was hired to install paving stone walkways around the premises. Plaintiff severely burned both of his feet while working with hot asphalt at the direction of the landscape contractor’s supervisor. Plaintiff received and continues to receive treatment for his injuries. He claims he will require the amputation of at least one of his feet
GVK’s attorneys argued that as general contractor, our client was not negligent and did not breach a duty of care owed to Plaintiff. They maintained that we did not control the means and methods of Plaintiff’s work that led to Plaintiff’s injuries. Ken and Peter further argued that pursuant to the contract entered into between the Landscape subcontractor and the defendant, and the terms of a stipulation negotiated in the related declaratory judgment action, GVK’s client was entitled to contractual indemnification and reimbursement of attorneys’ fees from the landscape subcontractor. As well as a finding of breach of contract for the landscape contractor’s failure to procure insurance naming the defendant as an additional insured on a primary non-contributory basis. Peter and Ken successfully argued that the Doctrine of Res Judicata barred the contractor’s arguments and claims inconsistent with the terms of the stipulation negotiated by its general counsel.
Consequently, the Court ruled that pursuant to the controlling legal standard, a general contractor is not liable for injuries sustained by a subcontractor’s employee unless said general contractor controls the manner and means of doing the work contracted for. The Court rejected the arguments of Plaintiff and the landscape subcontractor, that a general contractor owes a non-delegable duty to maintain a safe workplace and to proactively inspect the site for the minimal details of the work and how it is performed. The Court also dismissed all cross-claims asserted against the defendant. The Court directed the subcontractor (through its insurer) to reimburse GVK’s clients for the costs, expenses and legal fees they incurred defending the lawsuit.
Christopher L. Parisi recently obtained summary judgement in a New York Labor Law case in Kings County. GVK’s client allegedly served as the general contractor for a residential construction project in Brooklyn. Plaintiff testified that after installing a stacked washer-dryer unit and rolling it into a cabinet, he realized he mistakenly left the power cord on top of the unit. The washer-dryer unit was on wheels, and the power cord would have been accessible if plaintiff rolled the unit back out of the cabinet. Instead, plaintiff reached the cord by flipping over an empty bucket and standing on it, then slipped and fell backwards. Plaintiff also testified that his foreman had refused to provide him with a ladder to perform installations.
Plaintiff claimed injuries to: his head, spine, right shoulder, right forearm, right wrist, right leg, and right foot. He underwent surgery to his back, right shoulder, right wrist, and right foot. He alleged total disability. Plaintiff’s complaint alleged claims pursuant to New York Labor Law sections 200, 240, and 241(6), as well as common law negligence. At the close of discovery, plaintiff and all defendants moved for summary judgment. In support of their motion, plaintiff had an affidavit from an expert witness who claimed that plaintiff required a ladder for the subject task.
In granting summary judgment to the defendants, the court ruled that the plaintiff was the sole-proximate cause of his accident. Specifically, the court determined that plaintiff could have safely completed the installation by rolling the washer-dryer unit away from the wall, and that “he did not need a ladder and he should not have stood on a plastic bucket”. Plaintiff’s complaint, and all claims, were dismissed in their entirety.