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.

Richard Gonzalez, a former U.S. Coast Guard Marine Investigating Officer, and head of GVK’s Maritime and Admiralty Practice Group, was recently interviewed by producers for the Discovery Channel for an upcoming episode of their “Disasters At Seas” documentary series.

As you may remember, on October 15, 2003, the Staten Island Ferry Andrew J. Barberi, crashed with a maintenance pier at the Staten Island Ferry terminal, causing significant damage to the ferry and resulting in the tragic loss of ten passengers and serious injuries to over 70 additional passengers – an eleventh passenger would die a few months after the accident of related injuries.

When the crash occurred, there were fifteen crewmembers and an estimated 1,500 passengers were on board. At the time, Richard was on active duty with the U.S. Coast Guard and assigned to U.S. Coast Guard Sector New York. As a Marine Investigating Officer, Richard was one of the first U.S. Coast Guard responders to arrive on scene.

Make sure to tune in and watch Disasters at Sea, Season 2, Episode 6, “Death of the Staten Island Ferry” scheduled to air on the Smithsonian Channel, on February 16, 2020, at 9:00 pm (EST).

Plaintiff claimed that, on June 21, 2013, he was walking along South Street in Manhattan, on the east side of the street (where there was no sidewalk) and approaching Pier 17 at the South Street Seaport, when he was struck by our clients’ double decker bus and “thrown” ten (10) feet in the air.

Plaintiff claimed that a bus driver and tour guide exited the bus, saw plaintiff lying on the ground, and handed him a piece of paper, reportedly with a phone number to report the accident to the insurance company (plaintiff produced a piece of paper with a number to an unknown recipient). The bus then supposedly left with plaintiff lying on the ground, severely injured. A Seaport parking lot attendant was produced for deposition and confirmed that he saw plaintiff on the ground next to a double decker bus, but he did not see an impact, and later conceded he could not recall the color of the bus. There was no police report, although plaintiff claimed he did report the accident to police.

When the plaintiff presented to an ER two days later, there were no scratches or bruises on him. Ultimately, plaintiff claimed injuries to his right shoulder (resulting in two arthroscopic surgeries) and both hips (resulting in bilateral arthroscopic surgeries). He demanded $4.8million.

Our motion for summary judgment on the basis of liability was denied, and that decision was upheld on appeal. Plaintiff was deposed no fewer than four times over the past six years, as additional surgeries and injuries were causally related to the accident.

After a liability trial in New York County, the jury awarded a defense verdict after just 30 minutes of deliberation.

Anthony joins GVK as a Partner in our Construction and Design Professional practices, where he represents clients in pre-suit matters and in litigation in New York, New Jersey and Federal Court under Commercial General Liability and Professional Liability Policies, respectively. Anthony also handles GVK’s Risk Management programs for commercial insurance carriers as well as construction companies and design professional firms directly. In addition, he handles complex claims for high-profile insureds for certain commercial carriers as a Third-Party Administrator.

Before joining GVK, Anthony had approximately 10 years of civil litigation experience and 5 years of experience as a professional liability adjuster. Most recently, he worked for a major, national insurance carrier and a third-party administrator where he was the Team Leader for an Architects & Engineers Claims group. In this role, he was the point person for a nationwide claims practice under numerous policy forms including: Design Professional; Contractor’s Professional and Pollution; Owner’s Protective and Indemnity; Multi-Line Specialty; Commercial General Liability; Site-Specific Pollution and Excess policies. In addition to directly handling claims, he also managed an external claims team while simultaneously handling the carrier’s complex claims.

Anthony has been involved in many large E&O claims where policy limits have been at stake including: gas, chemical and/or mineral plant design projects; professional sports stadiums; hospitals; highways; universities; apartments; condominiums; and design-build projects – just to name a few.

In addition to his claims experience, Anthony worked at a major national law firm and regional design professional specialty firm where he specialized in the defense of architects and engineers under Design Professional liability policies in complex, multi-party actions. Also, he represented construction managers and general contractors under Commercial General Liability policies.

Anthony also has extensive experience in defending catastrophic personal injury matters that include allegations of wrongful death, traumatic brain injury and crush injuries. In addition, he has defended NY Labor Law, toxic tort, products liability, subrogation, dram shop, asbestos, mass tort, commercial trucking and personal auto actions. He has worked with numerous insurance carriers and has been involved in the successful resolution of hundreds of matters throughout his career.

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.

Kim H. Townsend recently obtained a Defense Verdict in a slip and fall on icy steps in Kings County. Plaintiff alleged she slipped and fell on the exterior steps of our client, the owner of the two-family home, due to an accumulation of ice and snow thereby sustaining a bimalleolar ankle fracture with complications, requiring hardware and 3 related surgeries including one for an infectious condition at the wound site; which also required surgery. In addition, there was a claim of defective handrail design based on a dozen NYC Code violations.

Kim argued that notwithstanding plaintiff was found on the steps in question, she actually fell in the street, as reported in the ambulance report, but which was at odds with the hospital ER records confirming her claim that she fell down icy steps. In an evidentiary and procedural duel involving court rulings, “opened doors” and shifting admissibility requirements, Kim was able to establish that plaintiff was experienced in personal injury litigation, having had a prior fall-down accident and lawsuit, and argued that plaintiff’s hospital version of the accident was altered to conform to practical litigation necessities of which she was aware.

Prior to trial, plaintiff’s demand was $1,300,000 and was reduced to $900,000. Defendants offered $350,000. The jury deliberated for 9 minutes before returning a Defense Verdict.