On Friday, December 13th, Martin Rowe secured a defense verdict in Supreme Court, Bronx County, delivering a significant win for our client, a supermarket operator. The plaintiff, a customer, alleged that she sustained injuries after a fall in the store, claiming she tripped over a box placed in the aisle by a vendor restocking shelves.

The plaintiff alleged she suffered a traumatic brain injury, a torn rotator cuff requiring surgery, and an aggravation of preexisting cervical and lumbar injuries. Through cross-examination of the plaintiff and the testimony of the former store manager who prepared the accident report, Martin argued that the plaintiff’s own inattentiveness caused the incident. He further demonstrated that the defendant neither created the hazardous condition nor had prior knowledge of it.

To strengthen the defense, testimony was provided by an orthopedic surgeon and a radiologist, both of whom confirmed that the plaintiff’s injuries were preexisting, degenerative, and unrelated to the alleged fall. The pretrial demand was $2 million, and at trial, the jury was asked for $3.5 million. Despite this, Martin’s arguments prevailed, resulting in a favorable outcome for the defense.

Gallo Vitucci Klar LLP is proud to announce that 9 of our attorneys have been named to the 2024 Super Lawyers and Rising Stars list! These prestigious honors highlight legal professionals who have demonstrated outstanding dedication and skill in their respective fields. With only 5% of lawyers in New York selected as Super Lawyers and just 2.5% earning the Rising Stars designation, we are honored that several of our attorneys continue to be recognized year after year for their exceptional work.

2024 Super Lawyers

Our GVK 2024 New York Metro Super Lawyers list:

2024 Rising Stars

Our GVK 2024 New York Metro Rising Stars list:

GVK has recently filed several motions across the New York State Court System regarding a certain plaintiff’s law firm that has admitted that it helped bring 200-300 fraudulent cases into our Courts.

That firm has told the courts and the defense bar that it can walk away from these potentially fraudulent cases (they have not identified which cases are fraudulent on the record) without saying a word regarding whether portions of those cases or the entirety of those cases are fraudulent. Up until now, the Courts have either allowed that law firm to walk away without explanation, or allowed the firm to file a consent to change attorney without explanation – and all without an attorney charging lien (which would have entitled to them to proceeds on any settlement).  In some instances, the Courts have allowed the defendants to amend their answers to assert fraud defenses, allowing the possibility of the defendants to prove fraud if discovery turns up such unlikely evidence.

We disagree.  We believe that the idea that the courts might allow additional discovery to take place down the road to identify potential fraud is inadequate, and will likely never be successful. Instead, we have argued – an idea supported by a highly regarded ethics attorney – that: the burden is on the plaintiff and the law firm and the referral source to immediately disclose any information, evidence, or communications regarding any and all fraud of any kind to the Court and the defendants immediately; and that the Court have their own independent responsibility and obligation to investigate the fraud.  We believe that it is not the defendants’ burden to try and find evidence of fraud during the discovery process, because the defendants did not bring the fraud into the Courts in the first place.

More specifically, based on a major collaboration here at our firm, and our retention of a well-credentialed and highly respected ethics expert, our research and collaboration found that that law firm must: (1) correct any prior false statements made to the Court (pleadings, affirmations, testimony, etc.), even if inadvertently made; (2) that any information regarding prior, ongoing, or future fraud must be disclosed immediately; (3) that a “noisy withdrawal” (implying that the action is tainted by fraud without saying it) is no longer an option in New York anymore; (4) that the crime-fraud exception to the attorney-client privilege does not protect fraudulent communications and actions; and (5) that no attorney-client privilege attaches if the fraud involves a referral source that helped bring a fraudulent action into the Court.  We have also found that the Court also has an independent obligation to investigate the fraud and to rid such fraud from the Courts.

This is an alternative approach, and another option for all defense firms out there who are working together to eliminate the fraud from the Courts. We believe that this is a more effective path to actually uncover the fraud, and to not allow potential fraudulent suits to continue in the courts.

If you have any questions regarding our approach, please reach out to C. Briggs Johnson and Howard Klar.

James Mercante, the head of GVK’s Admiralty practice, presented on September 16, 2024, at the 150th Anniversary of the International Union of Marine Insurance (IUMI) conference in Berlin, Germany. This significant event marks a milestone in the IUMI’s history, tracing back to its inaugural General Assembly in January 1874. Originally convened by 31 representatives from 39 marine insurance societies, the assembly aimed to foster cooperation and establish uniform principles for handling marine insurance matters. The IUMI conference has since evolved into a pivotal platform for discussing technical challenges, legislative improvements, and fostering a collaborative spirit among industry professionals. Mercante’s presentation will delve into the maritime law aspects of the DALI/KEY Bridge ship crash.

See TradeWinds article on No-nonsense judge seeks early end to Baltimore bridge liability battle here. 10/4/24

See TradeWinds article on premiums rising across the board here. 9/20/24

See TradeWinds podcast here. 9/20/24

See Lloyd’s List article about Mercante’s presentation at the IUMI conference here. 9/17/24

See TradeWinds article on loose wire theory that boosts shipowner in US liability battle over bridge collapse here. 9/16/2024

Written by C. Briggs Johnson

In Liciaga v. New York City Tr. Auth., 2024 NY Slip Op 04257 (2d Dep’t Aug. 21, 2024), the Appellate Division, Second Department recently issued a groundbreaking and long overdue decision allowing defendants in personal injury actions to attack a plaintiff’s award of future medical expenses under the Patient Protection and Affordable Care Act (“ACA”).  The essential take away from the holding is that a defendant can seek a collateral source hearing under CPLR 4545, even if a plaintiff does not have insurance coverage if the plaintiff qualifies for medical insurance coverage under the Affordable Care Act.  The plaintiff cannot simply decide not to obtain coverage under the ACA, because of plaintiff’s duty to mitigate his or her damages.

As the Court noted, this applies to most Americans.  “Pursuant to the ACA, most Americans must obtain ‘minimum essential [health insurance] coverage.”  And, “plaintiffs are also required to mitigate their damages and thus ‘make reasonable exertions to render the[ir] injur[ies] as light as possible.”  Thus, the Court continued, “[t]o the extent that a plaintiff can mitigate his or her damages by procuring insurance coverage that would offset some portion of his or her future medical expenses, he or she cannot simply decline to do so without a plausible explanation and avoid potential consequences.”

For example, if a plaintiff is awarded $1,000,000 in future medical expenses, plaintiff is uninsured, and a defendant can prove that the plaintiff is qualified for insurance coverage under the ACA, and that that insurance coverage would have paid $200,000 dollars towards plaintiff’s future medical damages, a defendant is entitled to a $200,000 reduction in those future medical damages under CPLR 4545.  We anticipate that this decision will have broad implications for the entire defense bar, and it will add another crucial tool in mitigating a plaintiff’s damages.

Please feel free to reach out either Howard Klar or C. Briggs Johnson regarding any questions you may have regarding this decision and how it impacts our clients, and on how we may be of assistance in helping to brief any post-trial motions on this issue.

The plaintiff claimed that on May 17, 2022, he was injured when he attempted to hold up his Harley Davidson motorcycle as it began falling over after he parked it on the unpaved driveway of the subject premises that he and his wife were leasing from our landlord client. Plaintiff argued that our client failed to repair or replace the unpaved driveway which he claimed was dangerous, defective, broken, unsafe, rocky and hard to navigate, and that the existence of a large rock and the unpaved condition of the driveway caused his motorcycle to become stuck and fall over.  Our motion for summary judgment focused on the lack of any dangerous or defective conditions which proximately caused plaintiff’s accident, the lack of any notice to our client, and the absence of any prior reported accidents. In addition, we argued that plaintiff’s act of grabbing and attempting to hold the motorcycle up to stop it from falling over was the sole proximate cause of his injuries. In support, we presented to the Court testimony that neither plaintiff nor his wife made prior complaints about the driveway’s condition, and the specific rock claimed to have caused the accident, and that the alleged condition of the driveway was open and obvious and known to plaintiffs, who had resided at the premises for a year prior to the accident. In addition, we submitted affidavits from our clients attesting that while the driveway was not in aesthetically good condition, it was safe and functional and did not need to be replaced.

The Court agreed with our argument that the presence of rocks on the unpaved driveway, and the alleged tendency of the surface to become wet and “mushy” when it rained did not constitute unreasonably dangerous conditions, and was open and obvious  and not inherently dangerous, and dismissed the complaint. Additionally, the Court ruled that the evidence in the case failed to support plaintiffs’ allegations that the alleged negligent maintenance of the subject driveway caused the plaintiff’s injuries.

The complaint was dismissed in its entirety. A demand of $2.4 million dollars had been made prior to the service of the motion.

At the time of the incident, the infant plaintiff and her mother were visiting a home owned by our clients who resided out of state. It was alleged the dog was owned by tenants of the property and that the dog bit the infant plaintiff causing substantial facial injuries. Plaintiff obtained a default judgment against the tenants. Our motion for summary judgement focused on our clients’ lack of knowledge that a dog was being harbored on the premises and that they neither knew nor should have known of any alleged vicious propensities. Deposition testimony was elicited by both plaintiffs and our clients that our clients were never made aware of the presence of a dog on their property. No prior incidents involving the dog were known and no prior complaints were received. As our clients testified at their depositions with the assistance of an interpreter, Wendy Schwartz elicited testimony from them clarifying their position in order to ensure that we were able to satisfy their burden of proof on the motion without the need for an affidavit.

The court adopted our arguments that in order to recover against a landlord for injuries caused by a tenants’ dog, plaintiffs had to demonstrate that (1) the landlord had notice that a dog was being harbored on the premises, (2) knew or should have known that the dog had vicious propensities and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog. It was undisputed that our clients, as landlords, did not own the subject dog. It was also undisputed that plaintiffs and defendant landlords never communicated and neither side was aware of the presence of the other. After clearly demonstrating that both the dog’s presence at the premises as well as any prior alleged behavioral issues with the dog were unknown to our clients, the Court held plaintiffs failed to raise a triable issue of fact. The complaint against our clients was dismissed with prejudice.

On July 31, 2024 and after more than three weeks on trial and three days of jury deliberations before Judge Maldonado Cruz in Queens Supreme, Grant M. Meisels secured a $262,000 plaintiff’s verdict in a damages only motor vehicle case where the plaintiff’s pre-trial demand was $3,000,000 and asked the jury for more than $8,500,000.  There was $6,000,000 of primary and excess insurance coverage to the insured truck driver and the company that owned the truck and summary judgment was already awarded against the defendants. The defendant truck driver hit the plaintiff in the rear while she was completely stopped but instinctively took post accident photos at the scene of both vehicles to show minimal damages to both the plaintiff’s vehicle and the defendant’s truck.

The 52 year old plaintiff, employed as a sterile technician at a local hospital, alleged a host of injuries that included bilateral knee surgical procedures, two bulging discs in the lumbar spine, a tear in the shoulder and an economic claim of more than $4,500,000 based on past and future loss of wages that included a claim she could never work again in any capacity and past and future medical expenses.  Her argument at trial was that all of the injuries were causally related to the accident.  The defense argued that all of the injuries were pre-existing and degenerative based on MRI films and she could return to work.

Plaintiff’s suggestion to the jury of an award of more than $8,500,000 was based on the testimony of her experts. Her suggestion included a claim of $2,000,000 for past pain and $2,000,000 for future pain. Her suggestions also included her life care planner calculations for $3,500,00 for the medicals and her economic calculations of $1,000,000 for loss of wages. The defense suggested $150,000 but only for past pain, past medical expenses and past loss of wages.

The verdict was significant for the defense as the jury award did not include any future money components and simply awarded $165,000 for 4 years of pain and suffering, $40,000 for medical expenses and $57,000 for past wages for 4 years.

Plaintiff called her treating orthopedist and her treating chiropractor and a life care planner and an economist.

The defense called an orthopedist, neuro-radiologist, vocational rehabilitation consultant and an economist.

Martin Rowe (partner) and Nadine Ibrahim (associate) secured a defense verdict on July 16, 2024, in the US District Court, Southern District of New York, before District Judge Gardephe in a disputed sideswipe trucking accident that occurred on the Cross Bronx Expressway.

As a result of the accident, the plaintiff injured his lumbar and cervical spine and underwent a lumbar discectomy at L3-L4 that was performed by Dr. Michael Gerling. Dr. Gerling testified at trial that the plaintiff would require lifetime medical care to his cervical and lumbar spine including pain management, physical therapy, annual diagnostic testing, a further lumbar discectomy and ultimately a lumbar fusion surgery.   In his closing argument, the plaintiff’s counsel requested that the jury award $1.15 million in damages.

Our driver, smartly, took  post-accident photos which depicted the final rest position of our truck and the plaintiff’s passenger vehicle.  Based on Mr. Rowe’s strong cross examination of the plaintiff and direct of our driver, we were able to convince the jury that the plaintiff was attempting to overtake the insured’s truck while on the Cross Bronx Expressway and caused the accident.   The defense verdict on liability was unanimous.

GVK is excited to announce the elevation of nine outstanding attorneys, Maggie O’Connor, Kelli McGrath, Jeremy Weg, Greg Day, Michael Liloia, Lee Mandarino, Sarah Allison, Scott Levinson and Richard Gonzalez to the position of Of Counsel. Their invaluable contributions and dedication to the firm’s client’s and success have made their promotion a well-deserved recognition of their accomplishments.

Maggie O’Connor concentrates her practice in defending clients in general liability, premises liability, labor law, motor vehicle, and property damage actions. Maggie has also successfully drafts and argues appeals in the New York State Appellate Division.

Kelli McGrath concentrates her practice in general litigation matters, including New York Labor Law, Construction Accidents, Construction Defects, Premises Liability and Products Liability. Throughout her career, Kelli has defended contractors, residential and commercial property owners, property tenants, real estate developers, hospitals, and insurance companies. Kelli handles cases in both Federal and State Court.

Jeremy Weg concentrates his practice in the areas of general liability, automotive liability, construction litigation, and premises liability.  Jeremy has experience litigating medical malpractice and negligence claims involving hospitals, nursing homes, home care agencies, physicians, and other health care providers. He also has significant experience in claims involving general personal injury and motor vehicle accident litigation. Jeremy has written briefs and argued cases in the New York Appellate Divisions, First and Second Departments.

Gregory Day concentrates his practice in civil litigation including premises liability, labor law, transportation, product liability, subrogation, construction, property damage, wrongful death and contractual claims. With over twenty years of experience, Greg has argued appeals in the First and Second Departments of the NYS Appellate Division and has taken matters to verdict.

Michael Liloia concentrates his practice in representing automobile insurance and general liability coverage companies and their insureds in litigation involving claims of bodily injury, property damage, and coverage disputes.  With nearly fifteen years of legal experience, Michael works diligently with clients in evaluating claims and communicating developments throughout the litigation process for an appropriate case-by-case cost-effective litigation strategy.

Lee Mandarino concentrates his practice in general liability defense, specifically in premises liability and motor vehicle accident cases, as well as insurance coverage matters. Detail-oriented and dedicated, he collaborates closely with his clients to effectively represent their interests and achieve their goals. Prior to joining Gallo Vitucci Klar LLP, Lee served as an associate with a prominent plaintiff’s personal injury law firm, where he skillfully guided injured parties through the complexities of the legal landscape.

Sarah Allison concentrates her practice in commercial insurance defense. Over that period of time, she has been recognized repeatedly as a Super Lawyer Rising Star. Her practice is primarily focused on premises liability and labor law matters though she has also handled motor vehicle cases. Sarah has successfully obtained case dismissals for her clients on both procedural and substantive grounds throughout her career with Gallo Vitucci Klar LLP.

Scott Levinson concentrates his practice in civil litigation, including premises liability, labor law, products liability, subrogation, property damage and contractual claims. With over thirty years of experience, Scott has represented a wide variety of corporate and individual clients at every level of litigation, from intake up to and including trials and appeals. He has served as Senior Trial Attorney for a large insurance carrier, was Of Counsel to a boutique insurance defense firm and developed and operated a successful multi-state law practice in New York and New Jersey.

Richard Gonzalez concentrates his practice in the firm’s Maritime and Admiralty Department.  Richard previously worked in the firm’s Transportation Law Group and managed the firm’s No-Fault Department. Richard grew up in Puerto Rico from where he enlisted in the U.S. Coast Guard.  While in the U.S. Coast Guard, Richard was involved in numerous operations afloat/underway and multiple large marine casualty/accident investigations, including but not limited to: vessel collisions and allisions, vessel groundings, passenger/crew personal injuries, port state control inspections, pollution investigations, suspension and revocation actions, merchant mariner licensing actions, and United States Coast Guard and National Transportation Safety Board investigations.  Richard retired from active-duty service from the U.S. Coast Guard, having achieved the rank of Lieutenant Commander (LCDR).