In a decision that may have a significant impact in certain types of personal injury cases, New
York’s highest court held in Rodriguez v. City of New York on April 3, 2018, that a plaintiff in a personal injury lawsuit may obtain summary judgment on liability against a defendant even where there is an unresolved question of fact regarding the plaintiff’s own comparative negligence.

The plaintiff in Rodriguez was a New York City Department of Sanitation employee who had been assigned to place tire chains and plows on trucks that were about to provide snow and ice removal in New York City. The accident occurred when a sanitation truck backed up and struck a parked automobile that in turn struck the plaintiff.

The plaintiff claimed that the City was negligent and filed a motion for summary judgment based on that alleged negligence. The City opposed and argued that there were questions of fact regarding both its alleged negligence and whether plaintiff’s own negligence contributed to the accident.

Typically, a question of fact as to a plaintiff’s alleged negligence has resulted in the entire question of liability being submitted to a jury, even if it is clear that the defendant was also negligent. In Rodriguez, however, the Court of Appeals, by a 4 to 3 majority, held that where the evidence establishes that a defendant was negligent as a matter of law, the plaintiff is entitled to judgment from that negligence and the only liability question for a jury will be plaintiff’s comparative negligence. The Court reasoned that because a plaintiff’s contributory negligence is not a bar to recovering from a negligent defendant pursuant to CPLR 1411, there is no reason why the plaintiff should have to wait until trial to obtain judgment for a negligent defendant’s liability. The Court concluded that lower courts had improperly required plaintiffs to bear the burden of proving that they were free from negligence before obtaining summary judgment, which did not comport with the purpose of CPLR 1411. Under Rodriguez, however, a negligent defendant will now bear the burden of trying to prove a plaintiff’s comparative negligence to a jury that has already been told that the defendant was deemed negligent.

Although the Court’s decision in Rodriguez is not helpful to defendants, it is unclear how this holding will affect personal injury lawsuits. It is still somewhat uncommon for a defendant’s negligence to be established as a matter of law before trial so that no jury resolution of that issue will be required, particularly where the claim is defended by competent and aggressive counsel. The Rodriguez holding will likely apply in the relatively small percentage of cases where there is overwhelming evidence of the alleged accident, the defect or condition that caused the accident, the defendant’s notice of, or other responsibility for, that condition, and the lack of any defense to that liability. There may be certain types of claims, such as transportation accidents, that will be more likely to be impacted. But the Rodriguez holding should not alter the course of most premises liability and other personal injury actions where counsel has set forth a triable defense to the defendant’s alleged liability.

The biggest practical effect of this decision may be to make it more difficult to settle some cases before motion practice and/or before trial. In instances where a defendant’s liability is likely or a plaintiff has already obtained summary judgment, that plaintiff’s leverage will substantially increase because the defendant will be forced to subject itself to the risks of trial to have any chance of establishing the plaintiff’s comparative negligence. In high value cases, early summary judgment may also lead to considerable interest on the plaintiff’s ultimate judgment (likely nine percent from entry of the summary judgment decision), as interest typically begins to accrue once a plaintiff obtains a liability judgment against a defendant.

James Deegan obtained a defense verdict in a work-related construction accident incident involving a trip/slip and fall case in Supreme New York. Plaintiff claimed to slip and fall over carpet tiles strewn across a pathway allegedly left by our client, the carpet tile installer, at a USB Bank under renovation resulting in reconstructive shoulder surgery and single level fusion to the lumbar spine. Plaintiff also alleged permanent disability and lost earnings for over 25 years. Plaintiff’s demand was $5 Million, non-negotiable.

The case was bifurcated due to the fact that a jury could not be empaneled because no jurors were willing to sit for over three (3) weeks. Bifurcating the trial reduced the trial to a few days, making it easier to empanel a jury.
Plaintiff testified that he was vacuuming the second floor while he slipped over loose carpet tiles in the hallway, causing him to fall backwards. During cross-examination Mr. Deegan was able to establish that Plaintiff never looked up or behind himself while vacuuming and had Plaintiff looked to his rear at any time as he vacuumed he would have seen the alleged obstruction without falling.

The jury found the carpet tiler negligent, but found no proximate cause. The jury also found in favor of defendants on the Labor Law section 241 (6) violations alleged.

Kenneth S. Merber, Esq. successfully defended his restaurant client in a slip/trip and fall case in the Supreme Court of the State of New York, New York County.

The claimant, a celebrity and famous collector of rare Asian art, fell while exiting the restaurant sustaining open complex comminuted and avulsion fractures requiring an open reduction and internal fixation with the insertion of multiple plates and screws. Plaintiff also alleged she suffered severe psychiatric injuries and the loss of enjoyment of the pleasures of her life asserting she is no longer able to travel to lecture on, teach, purchase and collect art, her only true passion.

Plaintiff requested that the jury award $7 million. The case was tried for more than 3 weeks before the Hon. David Cohen. The case was strategically defended and fought to optimize plaintiff’s failure to name the premises owner / landlord in this case.

Moreover, focus was given to the plaintiff’s lack of credibility and failure to comply with medical instructions to limit her own damages, both physical and psychological. The “millennial jury” returned a defense verdict after 4 hours of deliberation.

In a matter pending in Supreme Court, New York county, Andrew C. Kaye obtained summary judgment on behalf of a snow removal company in a slip and fall case.

Plaintiff alleged that on December 28, 2011, he was coming out of a bank when he slipped and fell in an area of the sidewalk that was not shoveled, despite the presence of a nearby path.  Plaintiff alleged the snow removal company failed to properly clear or salt the path, arguing therefore, that it did not matter that he chose to walk in an area that was not shoveled. As a result of the accident and resultant injuries, plaintiff claims he lost his moving business and sought more than $1,500,000 in damages.

Because the bank had cross-claims against the snow removal company, Mr. Kaye sought to offer an argument that went beyond an Espinal defense, and using the precise language of plaintiff’s deposition testimony, Mr. Kaye developed an argument that plaintiff was the sole proximate cause of his accident. The Court agreed, noting plaintiff’s claims about the condition of the path were red herrings and that no reasonable fact finder would conclude defendants were negligent. The Court also granted summary judgment in favor of the snow removal company dismissing the bank’s third-party claims for breach of contract.

On February 13, 2017, GVK Partner Matthew Levy obtained summary judgment dismissing Plaintiff’s Complaint, in its entirety, in a premises liability case pending before Justice Barbara Jaffe in the Supreme Court, New York County.  We represented the owner and management company of the building.

The Plaintiff, a 63 year old man, claimed that on August 23, 2012, between 6 pm and 7 pm, he slipped and fell on a puddle of water in the hallway on the 7^th and highest floor of defendants’ building.  As a result of the accident, Plaintiff claimed to have suffered a torn meniscus to his left knee requiring arthroscopic surgery.  Plaintiff also claimed an exacerbation of left shoulder injuries, which required him to undergo arthroscopic surgery.

Plaintiff testified that it had rained hard that day between 3 pm and 4 pm.  After he slipped, Plaintiff touched the ground, felt that it was wet and saw a three to four foot long puddle of water on the floor.  He did not know how long the water had been present on the floor, but believed that it had come from a leak in the ceiling as he had seen a water stain on the ceiling and felt a few drops of water fall on him.  We hired a certified weather expert to establish that it had not rained at all on August 23, 2012.

As part of our investigation into this accident, we also contacted the non-party security guard who was working in the building’s lobby at the time of the accident.  We obtained a copy of the log book entries for August 23, 2012.  The security guard, who appeared for a deposition at our request, testified that during his hourly inspections of the entire building that afternoon and evening, he did not observe evidence of water leaking from the 7^th floor ceiling before, at the time of, or after the accident. The security guard also did not document any water at the location of the accident during his inspections.

The Court held that the evidence submitted by the Defendants in the form of the routine inspections conducted by the security company throughout the day demonstrated that the Defendants did not have actual or constructive notice of the water on the floor.

Yesterday, in Forman v. Henkin, 2018 N.Y. Slip. Op. 01015 (Feb 13, 2018), the Court of Appeals, New York’s highest Court, issued a major decision overruling prior Appellate Division caselaw that required “defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account — that is, information that contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims’” in order to gain access to Facebook account.

The Court of Appeals, while recognizing that commencing a personal injury action does not render a Plaintiff’s entire Facebook account automatically discoverable, and that there should be no one-size-fits-all rule for Facebook account information, held that trial courts should follow a common-sense rule where, in personal injury cases, the nature of the incident and the injuries claimed should be the starting point for what should be disclosed.

This decision liberalizes the requirements for obtaining Facebook account information, and the defendant is no longer limited to obtaining publicly posted information. In cases where the Plaintiff alleges that their personal injuries have had an effect on their activities of daily life (such as socializing, vacations, sports activities, etc.) it seems likely that a Court will order that any pre- and post-accident photographs (whether public or private) of those activities posted on Facebook be disclosed, subject to limitations of disclosure of private or sensitive materials, such as photographs depicting nudity or romantic encounters, or temporal limitations.

Mr. Deegan has been with the firm since 2012. He is one of our senior trial attorneys with his practice concentrating on defending lawsuits involving traumatic brain injuries and catastrophic injuries.

Mr. Deegan has thus brought a wealth of experience to our Trial team. He has successfully defended personal injury claims stemming from incidents on construction sites, residential and commercial premises, toxic torts, motor vehicle accidents, and transportation incidents; claims against manufacturers and distributors; professional malpractice claims against physicians, attorneys, and accountants; and claims asserted against municipalities and governmental entities.

Mr. Scarglato began his career with GVK in 2007 and has proven himself to be a major asset to our transportation team. He has worked on high exposure litigation in commercial transportation, municipal liability and premises liability, from inception through trial, (including brain trauma spinal surgery injury cases to favorable outcomes). Mr. Scarglato has obtained favorable decisions in dispositive motions and most recently a fall from a bus resulting in multiple ankle surgeries.

In addition, Mr. Scarglato has argued appeals in both the First and Second Appellate Departments. His in-depth experience in both trial and appellate advocacy allows him to aggressively litigate cases to a favorable resolution.

Mr. Deegan’s and Mr. Scarglato’s continuing professionalism and dedication has become an integral component of our firm which has vastly contributed to our recent growth and achievements.

In Esen v. Narian, Partner Matthew Vitucci and Appellate Counsel Kimberly Ricciardi successfully appealed the denial of a motion for summary judgment on behalf of Trans Express, a company providing shuttle bus service to and from Resorts World Casino. The plaintiff sustained significant injuries when he was struck by a car as he attempted to cross a street near a marked pedestrian crosswalk at the casino, and commenced an action against the driver of the vehicle which struck him as well as Trans Express, which owned a shuttle bus that was stopped at a stop sign in the adjacent lane of the roadway.

The trial court denied a motion for summary judgment on behalf of Trans Express, based on its finding that issues of fact were present regarding whether the Trans Express driver, in “waving the plaintiff on”, negligently exposed the plaintiff to danger. GVK appealed the trial court’s decision, arguing that the driver who struck the plaintiff had an independent duty to stop at the stop sign in his lane of traffic, and that his failure to stop at the stop sign constituted an unforeseeable, superseding cause of the accident which severed any causal nexus between the plaintiff’s injuries and any alleged negligence of the Trans Express driver in “waving the plaintiff on”.

In a unanimous decision, the Appellate Division, Second Department agreed with GVK’s argument, holding that, “[E]ven if the plaintiff’s claim that he relied upon the bus driver’s wave to cross the roadway before he crossed the street is true, [the defendant driver’s] unforeseeable failure to stop when approaching a crosswalk marked with a stop sign, in violation of the Vehicle and Traffic Law, constituted an intervening and superseding cause that entitled Trans Express to a judgment of dismissal as a matter of law”.

Gallo Vitucci Klar LLP is proud to announce that 11 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2017. These GVK recipients have been recognized as the top attorneys in the New York Metro area for 2017. 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. Approximately 20% of our attorneys have received this recognition this year alone.

2017 Rising Stars
The GVK 2017 Rising Stars include, Partner, Daniel P. Mevorach and Associate, Justin J. Skvarce, who were each selected for their excellence in insurance coverage defense. Partner, Jessica Clark was selected to the Rising Stars list for her fifth consecutive year in construction and general litigation. Associate, Sarah Allison was selected for her excellence in personal injury defense. Associate, Andrew Fluger was selected in the categories of personal injury defense and civil litigation defense. Associate, Brett Kuller was selected for his excellence in professional liability.

2017 Super Lawyers
In addition to these six Rising Stars, Senior Partner; Howard Klar and Partners; Chad Sjoquist, Stephen Hoffman, Jeannine Davanzo and Kenneth Merber have been named to the 2017 New York Metro Super Lawyers List.
Senior Partner, Howard Klar has been named to New York Metro Super Lawyer List for his seventh consecutive year in civil litigation defense. Partner, Chad Sjoquist was selected for his sixth consecutive year in construction law and Partner, Stephen Hoffman was selected for his second consecutive year in civil litigation defense. Partner, Jeannine Davanzo has been named to the listing for her second consecutive year for her excellence in products liability defense. Trial attorney, Kenneth Merber was also named to the Super Lawyers list for his second consecutive year for his excellence in civil/commercial litigation defense.