Matthew J. Vitucci obtained a defense verdict on a damages only trial where plaintiff sought over $3,000,000.00 from the jury. Plaintiff, Maribel Ortega aged 56, alleged she was stopped in traffic eastbound on McLean Avenue and within its intersection with the southbound portion of Central Park Avenue in Yonkers, New York when our client’s tractor trailer made a wide left turn from the right westbound lane to go south on Central Park Avenue and struck the plaintiff’s 2015 Honda SUV on the driver’s side. Our client admitted liability in causing the subject accident; therefore, the case proceeded to trial on the issue of damages only.
Plaintiff claimed to have sustained severe injuries as a result of the collision. Following a yearlong course of conservative care Plaintiff underwent an anterior discectomy and fusion at level C5-C6 of her cervical spine. Plaintiff claimed severe aftereffects following the surgery including an allegation that there was a lack of fusion of the bone graft in the spine leading to a catastrophic hardware failure which would require the removal of the fusion construct, and re-implantation of new hardware. Plaintiff produced experts who opined that she would also require a Lumbar discectomy and fusion, a total knee replacement for her right knee, and a left shoulder surgery. Plaintiff produced evidence at trial through a life care plan that her future medical care needs for allegedly necessary medical care totaled $2.7 million dollars.
In defense to the injury claims we offered the testimony of a neurosurgeon who that plaintiff merely suffered from the continued deterioration of a cervical disc that had been injured in a prior accident. The expert further opined that the hardware construct was stable and not in need of repair. He disputed that plaintiff had pathology in her lumbosacral spine that required treatment. He further saw no need for future care.
We produced the testimony of an Orthopedic surgeon who opined that plaintiff suffered from preexisting arthritic changes in her knee and shoulder and that imaging showed no traumatic cause for plaintiff’s complaints.
Upon the close of evidence plaintiff requested in summation that the jury give an award of over three million dollars. Following five hours of deliberation the jury issued a verdict in favor of the defense find that plaintiff failed to prove that that she sustained a serious injury from the accident pursuant to the New York State Insurance Law.
Our investigation into plaintiff’s prior accident history revealed that she sustained injuries to the same body parts allegedly injured in the subject accident. At the time of trial, we offered evidence which identified plaintiff’s prior medical treatment and complaints of residual pain which lasted for years after the prior accidents.
Despite our client’s admission of liability in causing the collision, we argued that the subject incident was nothing more than a “side-swipe” accident which did not cause the plaintiff to sustain a permanent serious injury within the meaning of New York Insurance Law §5102(d). In support of our position, we offered full testimony of a biomedical engineer who opined that the nature of the contact imparted an insubstantial force to cause injury.
GVK congratulates our Partner, Joseph Scarglato, for being appointed by the Brooklyn Bar Association to Vice Chair of both the Transportation Law Committee and Tort Law Committee. In his leadership role, Joseph will coordinate CLE programs and Association publications related to transportation and tort law.
Plaintiff, a nurse working in a Dutchess County Hospital specimen room, was struck on the head by a 90 lb. overhead cabinet which suddenly detached from the wall.
Investigation disclosed that the cabinet was installed 8 months earlier, as part of a hospital expansion project involving construction of a new services wing. It was concluded that our client, a metal frame and sheetrock contractor, failed to install necessary wood backing for the cabinet installation per architect specifications, and that the cabinet in question was improperly attached to the wall by screwing it into the metal studs. Plaintiff brought suit against the cabinet maker, the general contractor who allegedly approved the alternate method for attaching the cabinet to the wall, the cabinet installer, the metal framer (our client) who concededly omitted the wood blocking, and the architect who was present and impliedly concurred with the cabinet’s revised installation method.
Plaintiff was granted summary judgment and the case was directed to proceed as a liability apportionment trial.
We argued that the missing wood blocking was an expected occurrence on a job of this scope and nature, and that our client’s liability should be cut off by actions of the cabinet installer who was indisputably aware of the blocking omission at the time of the installation, along with other parties who approved the revised cabinet installation procedure. The jury agreed with our assessment and awarded our client a Defense Verdict, holding the cabinet installer, general contractor, and architect, responsible for the occurrence in varying percentages.
By William Parra and Thomas Vitucci
On Jun. 3, 2022, both houses of the New York State Legislature passed the Grieving Families Act (S74A/A6770) (the “Act”), during its final session. The legislation proposes to amend Estates, Powers and Trusts Law (“EPTL”) §§ 5-4.1, 4.3, 4.4 and 4.6 to expand the types of damages recoverable in wrongful death suits. New York law presently limits recovery in wrongful death suits to “pecuniary losses” of a decedent’s distributees, generally calculated by the decedent’s future lost earnings. Existing precedent also allows for the recovery of a decedent’s pre-death conscious pain and suffering and loss of support, parental guidance and assistance and inheritance as types of pecuniary loss, although these other damages are often difficult to prove.
The Act’s most significant change allows a decedent’s survivors to recover for their own “emotional anguish” or pain and suffering. It further changes existing law, as follows:
The Act will conform New York law with that in the majority (41) of states. The question is whether this is the right time to enact this change and whether Governor Hocul will sign it. On the first question, the COVID 19 pandemic created unprecedented financial struggles for New York businesses, particularly small businesses, the impact of which continues. Countless businesses failed and those that survived continue to struggle financially. Amending existing law to allow for a new category of damages by an expanded group of beneficiaries, i.e., “close family members,” will greatly expand business owners’ financial exposure and raise insurance costs in a City and State where the cost of doing business is already prohibitively high. For instance, the Act expands standing to bring a wrongful death suit to any “close family member,” including but not limited to spouses, domestic partners, grandparents, step-parents, siblings and children, “based upon the specific circumstances relating to the person’s relationship with the decedent.” Such an expansion of damages in existing actions will be particularly prejudicial to defendants in terms of their expectation of and actual financial exposure.
Whether the Governor will sign the Act into law within the required 10-day period is another question. The rash of bills the Legislature passed in its final session may best be explained as an effort by legislators to show they are working for their constituents’ best interests in an election year. How many of these bills the Governor can and will review for signing within the 10-day period, and whether this Act will be one of them, remains to be seen. Otherwise, it will not go into effect and will need to be voted on and passed again, in the next Legislative session.
Should you have any questions concerning the impact of these amendments, please do not hesitate to contact Howard Klar or William Parra.
Governor Hochul signed the amendments to the NY Comprehensive Insurance Disclosure Act (“CIDA”) into law today. The following constitutes the relevant insurance disclosure requirements in NY State, under the revised law. The CIDA now applies only to cases in which Defendants filed an answer on/after Dec. 31, 2021. It no longer applies retroactively to existing cases. It does not apply pre-suit. In new cases, the CIDA requires every defendant to disclose the following, within 90 days of each defendant’s filing of its answer:
After the initial disclosure, defendants are obligated to re-certify and update the aforementioned disclosure upon the filing of the Note of Issue and before any mediation, settlement conference or trial date(s), and for 60 days after any settlement, entry of final judgment or appeal.
The most significant changes are that the CIDA no longer applies retroactively to existing cases (which were due Mar. 1st) and that policy applications are no longer required to be disclosed.
Should you have any questions concerning the CIDA’s requirements, please do not hesitate to contact Howard Klar or William Parra.
On Jan. 18, 2022, a bill to amend the recently enacted Comprehensive Insurance Disclosure Act (“CIDA”) was introduced in the NYS Senate. The proposed changes in Bill S07882 are virtually identical to those Governor Hochul proposed, which were outlined in our Jan. 6th alert. As you may recall, the Governor qualified her signing of the bill by issuing a “signing memo” stating that she did so after coming to an agreement with the Legislature to “properly tailor” the CIDA for its intended purpose, i.e., ensuring litigants were adequately notified of insurance coverage limits.
The most significant proposed changes to the CIDA include:
It is our understanding that passage of the Bill could take at least several weeks. Therefore, while it appears possible that the proposed amendments will be enacted into law by or very close to the CIDA’s present Mar. 1st compliance deadline for existing cases, we must stress that its significant requirements (also outlined in our Jan. 6th alert) remain the law until that time.
We will continue to monitor and keep you updated as to the Bill’s progress.
By William Parra and Corey Reichardt
Governor Hochul signed the Comprehensive Insurance Disclosure Act (“CIDA”) into law on December 31, 2021. However, she did so subject to a “signing memo” stating that she agreed with the intent of the bill but had reached an agreement with the Legislature to ensure that the scope of the disclosure it required was “properly tailored for the intended purpose,” i.e., to ensure litigants were adequately notified about of the potential limits of insurance coverage.
There are two important points to consider. First, the CIDA is presently the law and effective immediately. Defendants’ compliance in pending actions is presently due in 60 days (March 1st), and within 60 days of answering in new actions. However, the Governor’s agreement with the Legislature refers to chapter amendments modifying the CIDA which must be agreed to and passed by the Legislature and Governor. We understand that proposed amendments have already been drafted that address many concerns raised in our petition against the CIDA’s present form. When passed, the proposed changes should significantly lessen the time, expense and burden to defendants and their insurers, in complying with the CIDA.
Since the CIDA is presently law, the proposed amendments have not been agreed to or passed, and it is unclear when they may be, we summarize the CIDA’s requirements due by March 1st, as well as the proposed modifications. The CIDA significantly expands defendants and their insurers’ obligations, amending CPLR §3101(f) to require the following additional disclosures:
Compliance with these directives will significantly increase the time and expense required of defendants, their attorneys and adjusters alike. There is understandably confusion and concern over whether to immediately begin complying with them in pending matters or wait and see whether less onerous changes will be enacted in time to render the present requirements moot.
The most significant proposed amendments to the CIDA, include:
The difference between the enacted CIDA’s requirements and the proposed changes are significant. We will continue monitoring the legislative and executive branches’ progress in agreeing to and passing less onerous amendments to the CIDA.
In furtherance of our clients’ collective interest in the fair and economical pendency of insurance-related litigation, Gallo Vitucci Klar LLP this week joined other stakeholders in asking Governor Hochul to veto the Comprehensive Insurance Disclosure Act (the “Act”). The Act, which was presented to Governor Hochul for signature on December 20th, significantly expands defendants and their insurers’ required insurance-related disclosures, thereby increasing the time and cost of discovery.
Specifically, the Act amends CPLR §3101(f) to require a host of disclosures and related investigation. In so amending CPLR §3101(f), the Act adds 63 lines (from 8 to 71) of text describing newly-required disclosures. In conjunction with a newly created CPLR §3122(b), the Act also requires that defendants, their insurers and attorneys certify that all such required disclosures are accurate and that they will take reasonable efforts to ensure that they remain accurate, until 60 days after resolution of the litigation, including appeal. The Act requires that such initial disclosures be made within 60 days of answering a complaint, that all stakeholders certify their compliance with CPLR §3101(f) and that they disclose any changes they become aware of to the disclosures within 30 days of receipt of such information. The new disclosure requirements include providing certain information about each lawsuit and the related claim adjusters, TPAs and claims adjusters the TPAs report to, attorneys/law firms and the amount of their attorneys’ fees that may erode the limits of any applicable primary or excess policy. The Act also requires the disclosure of policy applications, which was expressly exempted from disclosure under the present CPLR §3101(f), and which may contain private or otherwise business-sensitive insured information. Of particular concern, the Act will go into effect immediately and require such disclosures in all pending lawsuits within 60 days of the enactment date. The Governor’s deadline for deciding whether to sign the Act is this Friday, December 31st.
In asking Governor Hochul to veto the Act, we argued that passage would impose significant and unreasonable obligations on litigants that we represent of every type, profession and field. It will increase litigation and therefore insurance costs which will disproportionally affect lower income individual and business owner litigants. We also noted that it is a particularly inopportune time to pass legislation which would only serve to significantly and unnecessarily increase the burden on State Court dockets—via related motion practice—which are already overburdened by pandemic-related restrictions.
Our letter was drafted by William Parra, a partner in our litigation defense and insurance coverage practice groups. Mr. Parra, on behalf of the firm, joined the New York Insurance Association, American Property and Casualty Insurance Association, the National Association of Mutual Insurance Companies and other law firms in requesting that Governor Hochul refrain from signing the Act into law.
On December 7, 2021, New York’s Appellate Division, First Department found that a plaintiff who failed to appear for an independent medical examination (IME) and soon thereafter underwent surgical treatment was not subject to spoliation sanctions. Gilliam v. University Holdings, 2021 N.Y. Slip Op. 06798 (1st Dep’t 2021). The five-justice panel reversed the lower court’s imposition of sanctions for what the lower court found to be willful destruction of evidence. In so doing, the First Department has drastically diminished a personal injury defendant’s ability to obtain critical discovery regarding alleged injuries.
The plaintiff, Jekeya Gilliam, was allegedly injured when a piece of her bathroom ceiling fell and struck her on the head. She brought suit against the building owner, among others, for injuries including a bulging lumbar disc at L4-L5. At a preliminary conference on August 10, 2018, the lower court ordered the plaintiff to appear for an IME within 45 days of her deposition. Following a compliance conference on October 26, 2018, the court ordered the plaintiff to appear for an IME within 45 days of the defendants’ designation of an examining physician.
The plaintiff was deposed on January 7, 2019. In early February 2019, the defendant designated their examining physician and the IME date – March 6, 2019. The plaintiff failed to appear for the IME and underwent a lumbar discectomy on April 2 before appearing for an IME. The defendant served a second IME notice on April 3 for May 15. The plaintiff filed a supplemental bill of particulars on April 9, in which she disclosed the discectomy, and appeared for the IME on May 15. Shortly thereafter, the defendant moved to dismiss the complaint or, in the alternative, for sanctions for the plaintiff’s willful spoliation of critical evidence. The lower court denied the defendant’s motion to dismiss but sanctioned the plaintiff by precluding her from offering any evidence of an injury or surgery to her L4-L5 disc.
In reversing the lower court’s order, the First Department held that “the condition of one’s body is not the type of evidence that is subject to a spoliation analysis.” Instead, a failure to appear for an IME “should be analyzed the same as other failures to comply with court-ordered discovery.” In support of this holding, the First Department reasoned that spoliation analysis should be applied to destruction of inanimate evidence only, that “the state of one’s body is fundamentally different” from such evidence, and that surgery is “entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate.”
The First Department also cast aspersions upon the role of the IME in personal injury litigation. Throughout the opinion, the court referred to such exams as “‘independent’ MEs.” It also noted that “[s]uch examinations, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all … Viewed in this context, an ME is simply one piece of evidence in a personal injury action.”
The court also reasoned that the defendant was not prejudiced by the plaintiff’s surgery because there was other evidence upon which the defendant could rely, including the plaintiff’s pre-surgical and post-surgical medical records. Of course, the court did not explain why such records, which are often prepared by doctors identified and retained by plaintiff’s attorneys, and increasingly funded by litigation funding outfits, are any more reliable than the findings of an IME.
Although the court left the door open for lower courts to treat the failure to appear for an IME like any other failure to abide by a court order, defendants are now left without sufficient recourse should a plaintiff undergo any surgical procedure before the defendants have a chance to examine the plaintiff.
Last week, following a nearly three-week trial, Matthew Vitucci obtained a defense verdict in Supreme Court, New York County before the Hon. Nancy Bannon on behalf of our clients, a cooperative apartment owner and its property manager. Plaintiff alleged she was injured by falling snow and ice while walking on the sidewalk in front of our clients’ building. Plaintiff claimed she sustained severe brain injuries including concussion, post-concussion syndrome with severe cognitive after-effects including: loss of memory, inability to perform basic functions including reading, maintaining relationships and working at her job; plaintiff further alleged that she sustained additional injuries from the impact with the falling ice including loss of hearing, a dislocated jaw, injuries to the cranial nerves resulting in trigeminal neuralgia, fibromyalgia, and traumatic epilepsy with seizures. Plaintiff alleges that she still suffers from the seizures despite treatment by an epitologist and despite being administered anti-seizure medications.
Plaintiff brought a negligence action against the building owner and property manager, alleging that our clients had notice of a hazardous condition caused by snow and ice accumulating on exterior surfaces of the building. Plaintiff further argued that our clients should have installed ‘ice guards’ to prevent snow and ice from falling to the sidewalk below, and that our clients should have closed off the sidewalk around their building. Despite unambiguous law preventing the admission of evidence of post-accident remedial measures, and Mr. Vitucci’s vehement objections, Judge Bannon even allowed plaintiff to introduce security video footage of our clients closing the sidewalk and clearing snow and ice.
On behalf of our clients, Mr. Vitucci argued that, in fact, the snow and ice had fallen from two large trees that overhung the sidewalk. Furthermore, even if the snow and ice did come from the building, Mr. Vitucci argued, our clients had no notice that such an event could occur as there had never been a similar incident prior to the date of loss. Therefore, our clients had no duty to install ice guards or close the sidewalk on the day of the accident. Mr. Vitucci also deftly used the evidence of our clients’ post-accident remedial measures to demonstrate that our clients were careful, conscientious property owners and managers.
Plaintiff asked the jury for $9.1M in summations. $225k was offered before testimony began. Following two full days of deliberations, the jury found that our clients had not acted negligently and returned a defense verdict.