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.
Kim Townsend recently obtained a defense verdict in a construction site motor vehicle accident case, in New York State Supreme Court, Suffolk County.
It was plaintiff’s contention that while driving through a traffic “chute” on our client’s construction site, a 60,000 ton crane slammed into his truck, causing violent vehicle movement and significant damage; all of which allegedly caused serious injury to plaintiff’s back and shoulder. Plaintiff contended that management of the construction site traffic chute, and crane placement, was performed in a negligent manner and thus caused the occurrence. Specifically, plaintiff argued that the client’s flagmen were negligent in waiving plaintiff through the chute while the crane—not properly placed per DOT specifications—was rotating with a load of steel beams in its boom sling. Kim argued that, notwithstanding our client’s theoretical negligence, plaintiff’s testimony was false on important and material matters—specifically the force of the crane’s impact with his truck, which could not plausibly be reconciled with photos of the vehicle damage. Accordingly, it was argued, the jury should disregard all of plaintiff’s testimony and find in favor of defendants. After approximately 4 hours of deliberation, the jury returned a unanimous defense verdict.
As a consequence of the accident, plaintiff claimed to have sustained injury to his mid back, requiring thoracic vertebral fusion surgery, and a torn rotator cuff, requiring arthroscopic surgery.
Prior to trial, plaintiff’s demand was $5,500,000. The demand was reduced to $2,500,000 during jury deliberations.
Andrew C. Kaye joined Gallo Vitucci Klar in the spring of 2014 focusing on the defense of high exposure cases. Handling mostly labor matters, Andrew’s ability to evaluate and manage all aspects of litigation, including risk transfer, coverage and general liability has proven an invaluable asset to GVK and its clients. He is regularly called upon to provide quick, succinct and precise analysis on transfer and excess matters, often having to prepare those files for trial within small windows of time. In addition to his legal acumen, Andrew is able to develop and harness relationships with both counsel and clients, allowing him to regularly secure favorable and efficient results. He has been an important part of GVK’s continued growth and we are happy to announce his promotion to partner.
Richard E. Weber Jr. has been with the firm since 2013. He focuses his practice on general liability defense, defense of false arrest/wrongful detention claims, and transportation defense. In addition, Richard has developed expertise in the area of No-Fault litigation, including subrogation actions. He also has exceptional experience in insurance coverage especially in cases involving material misrepresentation and fraud at the inception of the policy.
Since joining the firm in February 2013, Jill Zibkow has focused her practice on the defense of a wide variety of general liability matters including premises liability, construction defect/Labor Law, and professional malpractice. Jill is a versatile lawyer and team leader who achieves successful outcomes for our clients through her creative and resourceful defense strategies. She is an integral component of our firm and has vastly contributed to our recent growth and achievements.
Maria Zouros has been with the firm since 2016. Her primary concentration is in the defense of high exposure construction accidents, municipal liability and premises liability. In addition, Maria is a mentor to newly admitted attorneys and legal interns beginning their careers at GVK.
GVK is very pleased by the promotion of this talented and exceptional group of lawyers. Their work and importance to the firm is a foundational part of our ongoing success and our ability to evolve to meet the challenges of the market. They continue to play a key role in our delivery of superior legal services and value to our clients. We look forward to their ongoing contributions.
John Blumenstock recently obtained a defense verdict in a pedestrian knockdown case in NY Supreme Court, Rockland County. On the night of October 15, 2013, a then 67-year-old woman with considerable emotional issues, was struck and dragged 20-30 feet along the roadway by our client’s bus as she was crossing the entrance to the New York State Thruway in Clarkstown, New York. Plaintiff alleged that the driver negligently failed to see her in the crosswalk despite good lighting and clear conditions and failed to yield the right of way. John argued that plaintiff was not in the crosswalk, difficult to see in dark clothes, walked between cars/traffic, and stopped in middle of road without trying to avoid contact with bus.
As a consequence of the accident, plaintiff claimed she sustained fourteen broken bones (three requiring surgery,) ligament injuries, lacerations requiring debridement and closure with sutures and fracture blisters. She was hospitalized for two months and then had to undergo 5 months of inpatient rehabilitation physical and occupational therapy. Medical expenses were roughly $1,240,000.
Prior to trial, the plaintiff’s demand stood at $2,500,000. The jury returned a complete defense verdict on liability after 20 minutes of deliberations.
Gallo Vitucci Klar is pleased to announce that we have moved our New Jersey office to 3 University Plaza Drive, Suite 402 in Hackensack, NJ. The new office more than doubles our NJ office space, allowing us to better serve our clients’ needs.
Our firm, has 70 attorneys in Manhattan, Westchester, Long Island and New Jersey. This move will allow us to better provide our clients with the experience, skill, and creative approach they have come to expect from Gallo Vitucci Klar LLP.
Gallo Vitucci Klar LLP is proud to announce that 14 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2019. These GVK recipients have been recognized as the top attorneys in the New York Metro area for 2019. No more than 2.5 percent of lawyers in the state are selected per year to the Super Lawyers or Rising Stars listings, yet many of our attorneys have been named to the list year after year.
2019 Rising Stars
The GVK 2019 Rising Stars include, Partner, Jessica Clark was selected to the Rising Stars list for her seventh consecutive year in general litigation. Associate, Sarah Allison was selected for her third consecutive year in personal injury defense. Krystina Maola was selected for her excellence in products liability. Associates, Andrew Fluger and Gina Wischhusen were both selected in the area of civil litigation. Partner, Shanna Torgerson was also named to the Rising Stars list for professional liability.
2019 Super Lawyers
In addition to these six Rising Stars, eight of our Partners have been named to the 2019 New York Metro Super Lawyers List.
Senior Partner, Matthew Vitucci has been named to New York Metro Super Lawyer List for his seventh consecutive year for his excellence in civil litigation defense. Managing & Senior Partner, Howard Klar was selected for his eighth consecutive year in civil litigation defense. Chad Sjoquist was selected for his eighth consecutive year in construction litigation and Stephen Hoffman was selected for his fourth consecutive year in civil litigation defense. Jeannine Davanzo has been named to the listing for her fourth consecutive year in products liability defense and Heather Ragone was selected for her fourth consecutive year in transportation and maritime defense work. Partner, Jeffrey Richman was selected for his excellence in personal injury defense. Trial attorney, Kenneth Merber was also named to the Super Lawyers list for his third consecutive year in construction litigation defense.
Matt Vitucci recently obtained a defense verdict in Mercer County, New Jersey on behalf of our client-limousine company-whose vehicle rear ended plaintiff’s car at a speed in excess of 30 miles per hour. As a result of the accident, plaintiff claimed he was caused to suffer an exacerbation of pre-existing lumbar and cervical disc disease, as well as constant severe pain and limitation of movement of the cervical and lumbar spine. Plaintiff also claimed work restrictions in that he could no longer perform his full duties as a laborer and that instead he has been forced to work on light-duty status.
Specifically, plaintiff, Noel Pineda, a 46-year-old Hispanic male, was in the right lane of three southbound travel lanes on Route One in the vicinity of Princeton NJ in heavy stop and go traffic at the time of the accident. Pineda claimed that the impact was very substantial and pushed his car into the rear of the vehicle he was following, bending the frame of his car in the process.
At trial plaintiff claimed that the accident caused him to suffer from an exacerbation of pre-existing lumbar and cervical disc disease as well as constant severe pain and limitation of movement of the cervical and lumbar spine. Plaintiff claimed work restrictions in that he could no longer perform his full duties as a laborer and that instead he has been forced to work on light-duty status. He further claimed at trial that he can no longer perform many of his pre-accident pursuits, including basic activities of daily living and that those are limited by pain and restriction in motion.
The defendant driver testified that he observed the plaintiff moving about freely at the accident situs – bending over to take pictures of the vehicle damage and bending over to get items out of his car in an apparently uninjured fashion. Plaintiff declined medical attention at the scene. It was pointed out by Matt during cross examination that plaintiff was less than forthcoming with regard to information regarding prior injuries to his neck and back. It was further pointed out that plaintiff had been involved in prior accidents—one in 1995 where he fractured his neck and was forced to wear a halo for 6 months. He then then was involved in another accident in 2007. He brought lawsuits for both prior accidents and therein made claims for lower back and neck injuries. Plaintiff’s physician during cross examination admitted that he had been given incomplete information regarding both prior accidents. The defendant’s examining physician opined that any pathology he observed in the MRI’s of plaintiff’s spine all pre-dated the subject accident and that plaintiff’s injuries amounted to sprains and strains only. After deliberations following a 4-day trial the jury returned a verdict for the defendant finding that the plaintiff had failed to prove the defendant was negligent. Congratulations to Matt!
Gallo Vitucci Klar LLP is proud to introduce our new attorneys, Daniel J. Garry, James F. Desmond, Dawn Miller, Christopher L. Parisi, Jeff R. Thomas, Kim H. Townsend, Marissa Dunderdale, Kiel M. Doran, Stephanie M. Gallo, Thomas J. Keevins, and Gina M. Wischhusen!
Daniel J. Garry concentrates his practice on personal injury and construction defect cases. He also has experience in professional liability, insurance coverage, subrogation property damage actions, commercial transportation and maritime law. Prior to joining Gallo Vitucci Klar LLP, Mr. Garry practiced civil litigation in New York and New Jersey, including matters involving personal injuries and allegations of professional malpractice.
James F. Desmond focuses his practice in the areas of general liability and complex defense matters involving construction accidents, trucking and transportation, insurance coverage, labor and employment, and commercial disputes. He has provided counsel to Fortune 500 companies, global insurers, syndicates, directors, officers and employees regarding litigation strategies, risk management, and dispute resolution.
Dawn M. Miller focuses her practice mainly in the areas of general liability and premises liability. Before joining the firm, her practice areas included general liability, automobile liability, premises liability, and property damage/subrogation.
Christopher L. Parisi concentrates his practice on New York Labor Law and negligence claims, as well as other construction-related claims including contract analysis, commercial transportation, and risk transfer. He has represented owners, general contractors, and trade subcontractors, in construction, personal injury, indemnity, and property damage litigations.
Jeff R. Thomas concentrates his practice on general liability, construction litigation, labor law/employment law, elevator and escalator, toxic torts, premises liability, products liability, subrogation/property damage, automotive liability and insurance coverage/indemnification disputes. He has successfully tried cases to verdict and argued appeals before the Appellate Divisions of the First and Second Departments.
Kim Higgins Townsend is a trial attorney focusing on catastrophic high exposure cases. He is a veteran New York City trial attorney, having taken over 200 jury verdicts, in addition to countless settlements over the course of his lengthy career. Mr. Townsend has been trying cases in the New York metropolitan region since his graduation from law school when he was hired by Manhattan District Attorney Robert M Morgenthau as an Assistant Suffolk County Attorney, focusing on sec. 1983 trials, involving police matters, in U.S District Court for the Southern and Eastern Districts of New York.
Marissa Dunderdale, an associate with the firm, focuses her practice mainly on premises liability, construction accident, and insurance coverage and litigation in both New York and New Jersey.
Kiel M. Doran handles claims involving construction accidents, premises liability, subrogation, as well as directors & officer’s litigation. He has experience defending clients in areas including labor law, commercial contract disputes, lien foreclosure actions, motor-vehicle accidents, premises liability action, claims of negligent security, property damage, assault, and dram-shop cases.
Stephanie M. Gallo has over 20 years of insurance defense litigation experience. As a partner with the firm, she focuses her practice on, premises liability, automobile liability and property damage, and construction labor law.
Thomas “T.J.” Keevins focuses his practice on the areas of general liability, labor law claims, automotive liability, construction liability, & premises liability. Mr. Keevins brings nearly 20 years of experience in handling cases involved in alternative dispute resolution, automobile and transportation, class actions, construction accidents, construction defect, criminal law, general liability, municipal liability, no-fault/uninsured motorist coverage, premise, property and security liability.
Gina M. Wischhusen has 10 years of experience and focuses her practice on general liability matters and commercial litigation. She has handled personal injury claims relating to construction site accidents, premises liability claims, and trucking/automobile matters.
On January 24, 2019, the Appellate Division First Department dealt a blow to plaintiffs’ attempts to hide their activities on social media. In the case of Vasquez-Santos v Matthew, 2019 N.Y. App. Div. LEXIS 527, the Court held that, “[p]rivate social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims’”
In Vasquez, the plaintiff, a semi-professional basketball player, alleged that the injuries he sustained in a motor vehicle accident prevented him from performing certain activities, including basketball. When confronted with photos posted on his Facebook page depicting him playing basketball, he explained that the photos were from games played before the accident. Nevertheless, the Appellate Division held that the defendant was entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury and granted access to plaintiff’s accounts and devices, limited to those items posted or sent after the accident, and in subject matter.
The right to obtain access to a plaintiff’s Facebook page (or other social media) is not unlimited and is based on a case by case basis. In the case of Forman v Henkin, 30 N.Y.3d 656 (2018), the Court of Appeals, the highest Court in New York, permitted the defendant access to the plaintiff’s Facebook page and found it to be “material and necessary” under CPLR 3101 (a), as it was highly relevant to the issues in controversy, specifically the plaintiff’s decedent’s health at the time of the accident and prior thereto. In deciding the accessibility to a plaintiff’s Facebook materials, the Court of Appeals instructed the lower courts to weigh the following factors:
- The nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account;
- Balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder. In a personal injury case, the Court held that it was appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate—for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.
The liberal discovery laws in New York requiring parties to disclose what is material and necessary is what Courts seem to be hanging their hat on to compel disclosure. Based on the above factors, it is clear that Courts will be weary in ordering a plaintiff to provide unrestricted and unfettered access to their Facebook page. That being said, a plaintiff who testifies that he can no longer play basketball (but has basketball photos on his page), cannot dance (but is seen dancing), or cannot focus for long periods of time (but writes poetry on their Facebook page), may be susceptible to having the Court order them to grant access to their full page. In this case, the plaintiff claimed that the photo of him playing basketball was taken before the accident and therefore, the court permitted a third-party vendor to examine the meta data to challenge plaintiff’s claim of when the photo was taken. The Court, however, also said that during the inspection of the meta-data, any post- accident items discovered that depicts the plaintiff engaging in activities that contradict his claim of damages and limitations would also be subject to the inspection.
Defense counsel should be searching the various social media platforms (Facebook, Instagram, Linked In, Twitter and You Tube) upon assignment and saving any photos, videos or postings which may impact the damages analysis of the case. Once a plaintiff provides testimony as to their inability to engage in social or recreational activities, these photos should be marked and shown to the plaintiff and questioned about any other postings that could be on their social media pages. Based on the decisions issued thus far, the more conflicting evidence between the plaintiff’s testimony and the photos, the better your chances for gaining access.
For more information, please contact Matthew Levy at MLevy@gvlaw.com or Bryan Schwartz at Bschwartz@gvlaw.com or by phone at 212-683-7100
