Notable Cases

Fishman McIntyre P.C. enjoys the reputation of having skilled litigators who try cases to verdict. While the attorneys at the firm aggressively file motions to dismiss, they also seek to resolve matters through mediations and binding arbitrations. The reputation of Fishman McIntyre P.C. and its’ approach in handling litigation enables the firm to obtain very favorable results on those cases that are not tried.

The following are notable trials, decisions, and results obtained by our attorney

New Jersey Cases

Proximate Cause – Defendant’s Verdict – New Jersey

Contractor’s Negligence – Defendant contractor moves ladder – Absence of ladder prompts plaintiff to attempt to walk in narrow area and lose his balance, falling 15 feet – Liability only –High/low agreement.  Essex County, NJ

This case was tried on liability only with a $285,000/$7500 high/low agreement. The plaintiff contractor engaged in painting windows next to a roof-overhang at a single family home, had used a 20 foot extension ladder to climb to the area. The plaintiff contended that as he was engaged in painting, the defendant, a different contractor assigned windows in a nearby portion of the roof, moved the ladder approximately 20 feet. The plaintiff maintained because of the missing ladder, he attempted to walk across a narrow portion of the roof to reach the ladder which had been moved by defendant. As the plaintiff was attempting to walk across the roof, he lost his balance and fell after taking several steps.

The defendant indicated that he had moved the ladder, but that when he realized that the plaintiff had completed his work, the defendant offered to move the ladder back for the plaintiff’s use and that the plaintiff declined. The plaintiff denied that the defendant had offered to move the ladder back. There was no independent eyewitness testimony. The jury found eight to zero that the defendant was negligent, but also found eight to zero that there was an absence of proximate cause. The case then settled for $7500 in accordance with the high/low agreement.

Reference: Winters vs. Prestige Overhead Doors. Docket No. ESXL- 6599-11; Judge Christine Farrington, 08-07-13.

Attorney for defendant: Stanley P. Fishman of Fishman McIntyre, PC in East Hanover, NJ.

Premises Liability – Defendant’s Verdict- New Jersey

Premises Liability – Fall Down – Alleged negligent failure of mall to salt walkway leading to tenant/ store’s employee entrance – Fall – Ankle fracture –High/low agreement – Liability only. Union County, NJ

The plaintiff, then 29, who was being driven to her job at the defendant mall, contended that the weather conditions deteriorated severely on her way to the mall, and although sleet had not been falling for a lengthy period, the weather had been inclement for some time. The plaintiff maintained that defendant mall had employees salting the area in front of customer entrances, and that the area designated as an employee entrance should have been attended to as well. The plaintiff asserted that she was required by her employer to use only an employee entrance. The plaintiff maintained that in order to enter through this area, she had to be dropped off on the far side of a curb, walk onto the sidewalk and into the entrance. The plaintiff alleged that as she stepped up onto the sidewalk, she slipped and fell on ice. The plaintiff contended that the mall had ample time to cure the icy condition on the sidewalk, but failed to do so.

The defendant contended that it acted reasonably, especially in view of evidence that the weather had deteriorated only approximately ten minutes earlier. The defendant also maintained that it had assigned some seven employees to salting the sidewalks once the weather changed and contended that it was clear that it acted appropriately. The plaintiff sustained an ankle fracture that was treated with a closed reduction and which required her to be non-weight baring for several months. The plaintiff also missed a few months from work. The plaintiff would have introduced evidence of approximately $30,000 in medical specials and $20,000 in past lost wages. Prior to trial, the parties entered into a $15,000/$90,000 high/low agreement and the case was tried on liability only. The jury found six to one that the defendant was not negligent.

Reference: Cypcar vs. The Mall at Short Hills, et al. Docket No. UNN-L4549-11; Judge James Hely, 08-13-13.

Attorney for defendant: Christopher McIntyre of Fishman McIntyre, PC in East Hanover, NJ.

Defendant’s Verdict– Premises Liability – New Jersey

This case involved a plaintiff who tripped over a hand basket at the check out line.  Another customer standing behind the plaintiff placed the hand basket on the floor and when plaintiff turned to go back shopping she tripped over the basket. As a result of her fall, plaintiff sustained serious personal injuries including a fractured shoulder requiring a hemi-arthroplasty as well as plastic surgery to repair a deep wound on her leg.  There was no dispute as to plaintiff’s injuries and the defense focused solely on the lack of negligence on the part of Shop Rite.

A store surveillance video of the accident showed plaintiff standing in line at the cash register when the customer standing behind the plaintiff placed her hand basket on the floor.  Four seconds later, plaintiff is seen tripping over the shopping basket.

The attorneys presented their opening statements followed by the direct and cross examination of plaintiff Catherine Yarmack.  Plaintiff’s expert Robert Loderstedt  then took the stand. Defendant cross examined Mr. Loderstedt demonstrating his opinions were mere generalizations without basis.  In particular, defendant led Mr. Loderstedt to acknowledge there was nothing Shop Rite could have done to prevent the customer behind plaintiff from placing her hand basket on the floor. Nonetheless, over defense counsel’s objection, the court believed a “mode of operation” charge was appropriate.

After approximately twenty-five minutes, the jury returned a unanimous verdict finding plaintiff failed to satisfy her burden of proving Shop Rite was negligent. The  court went on to enter a judgment for a “no cause for action” against plaintiff.

Date of Verdict: March 1, 2013

Reference: Yarnack, Catherine v. Shop Rite        Superior Court of New Jersey, Middlesex County, Law Division Docket No. MID-L-9337-10

Attorney for Plaintiff: Paul J. Nemergut, Esq.  Judge Honorable Phillip L. Paley,  J.S.C.

Responsible Attorney: Scott D. Samansky, Esq. for defendant Shop Rit

Premises Liability – Defendant’s Verdict – New Jersey

Slip and fall on yogurt in supermarket aisle. Liability only. Middlesex County. The plaintiff who stopped at the defendant’s supermarket after work with a friend, contended that she slipped and fell on five penny-sized drops of yogurt which were present on the aisle floor. The plaintiff contended that the substance had been present for a sufficiently long time so as to allow the defendant to observe and clean it. The plaintiff’s friend, who observed the fall, indicated that she was not looking at the floor. The defendant denied any notice. The current manager, who was not the manager at the time, indicated that the area had been inspected five minutes earlier. The plaintiff challenged the basis for the witness’ time estimate and the current manager indicated that he was basing his testimony on his viewing of a surveillance tape which showed the then manager, who like all employees, are trained to look at the floor, walking by the area some five minutes earlier. The court had previously ruled that the defendant could not present the videotape, which the defendant maintained did not support the plaintiff’s claim as to the presence of the yogurt and which the court found was of relatively poor quality, rendering any probative value outweighed by the potential prejudicial affect. The witness also testified that on the videotape, he observed the manager look at the area shortly after the fall and shrug.

The jury found that the defendant was not negligent. Reference Frank vs. A&P Docket No. L-01061-01; Judge Nicholas Stroumtsos, Jr., 1-04.

Responsible Attorney: Christopher E. McIntyre

Premises Liability – Defendant’s Verdict – New Jersey

Fall allegedly occurs at mall. Ex-girlfriend purportedly witnessing incident testifies that it occurs at location other than mall. Liability Only Hudson County

The plaintiff, in his early 40s, contended that the defendant mall negligently left a paper flyer on the interior step. The plaintiff claimed that he was walking down the stairway with his then girlfriend when he slipped, prevented himself from falling and then walked down the stairs with her. The plaintiff, who claimed to have suffered significant leg injuries, maintained that his girlfriend then retrieved the car, they left, and by the next morning he was experiencing additional pain and swelling, prompting him to have his aunt bring him to the emergency room. The ex-girlfriend was listed as a witness, but could not initially be located. She indicated that sometime before the scheduled trial, she ran into the plaintiff’s cousin and was advised of the suit, that the plaintiff intended to win a significant amount of money, and that she was listed as a witness. The girlfriend related that she then went to the mall and told the security personnel that no incident had occurred at the mall, but that the plaintiff had slipped and fallen on a sidewalk on the same day. The plaintiff presented the aunt’s rebuttal testimony in which the aunt indicated that the plaintiff told her the incident occurred at the mall, and that the girlfriend, who was present, did not correct the plaintiff. The girlfriend maintained that she objected to the plaintiff regarding his plan to indicate that the incident occurred at the mall, but did not voice such objections in front of the aunt. The plaintiff also presented the cousin who allegedly ran into the ex-girlfriend and advised her of the suit, who denied having such a conversation with her. The plaintiff argued that the jury should consider that the ex-girlfriend was hostile to the plaintiff, and that her testimony should be rejected on the issue of bias.

The jury specifically found that the incident had not occurred at the mall and a defense verdict was entered.

Reference Corbato vs. NC Mall Assoc., et al. Docket No L-448-01; Judge Camille Kenny, 7-1-03.

Responsible Attorney: Christopher E. McIntyre

Hazardous Premises – Defendant’s Verdict – New Jersey

Wall at parking deck allegedly too short to comply with BOCA Code – 22-year-old decedent allegedly falls from sixth floor parking deck-suffers fatal injuries-Wrongful death

The plaintiff contended that the 22-year-old decedent fell to his death from a wall adjoining the fifth floor of a parking deck at the defendant mall. The plaintiff maintained that the wall did not conform to the BOCA code because there was only a 30-inch distance between the concrete wheel stop and the top of the wall. The plaintiff further contended that the BOCA code required a wall of at least 42 inches. The incident occurred at approximately 1:00 a.m. on a Monday. The defendant denied that there was sufficient proof to permit the jury to consider whether the plaintiff fell from the fifth floor wall and made a motion for involuntary dismissal.

The plaintiff contended that the violation was a substantial factor in the decedent being able to sit on the wall and then fall to his death when apparently startled.

The defendant maintained that factors, including recent bizarre behavior on the part of the decedent probably reflected that the decedent entered the mall property after it closed and purposely jumped. Testimony revealed that the decedent left a book called God and The Big Bang Theory in the car with his photo and birth certificate in the book. In addition, the decedent’s wallet, money and watch were found on the adjacent fourth floor roof, lending credence to this argument.

The defendant also contended that if properly measuring the height of the wall from the ground, rather than the wheel bumper, the wall complied with the 42-inch height requirement of the BOCA code.

There was no evidence of conscious pain and suffering.

The decedent was unmarried and had no children. The parents made a claim for the loss of services, companionship and guidance that would have been forthcoming from the decedent.

The court held there was inadequate evidence of causal relationship to submit the case to the jury and granted the defendant’s motion for an involuntary dismissal at the close of the plaintiff’s case.

Reference- Plaintiff’s architect: Alexander Lisse, from Princeton Junction, NJ.

Fox vs. The Taubman Co., d/b/a/ The Mall at Short Hills, Docket No. L-2731-02; Judge John F. Malone 5-06

Responsible Attorney: Christopher E. McIntyre

Legal Malpractice – Defendant’s Verdict – New Jersey

Alleged negligent failure of defendant attorney in underlying sexual assault/harassment case against former employer to seek appointment of guardian ad litem for purpose of finalizing  settlement in underlying case. Plaintiff no caused by jury in underlying case following inability to finalize terms of $750,000 offer.   Essex County

This was a legal malpractice action involving a female plaintiff who, in the underlying action, had brought a sexual assault/harassment action against her former employer in which she made allegations which included rape. The plaintiff contended that when an offer of $750,000 in three installments was made during the trial of the underlying case, she was unable to make decisions necessary to finalize the settlement, including issues relating to a confidentiality agreement and guarantees that the plaintiff would receive the installments when due. The settlement was not finalized and the jury in the underlying action returned with a finding of no cause for action. The plaintiff’s legal expert contended that the defendant attorney should have realized that the plaintiff needed the appointment of a guardian ad litem for the limited purpose of finalizing the settlement and should have applied for an appointment of the mother to so act. The defendant denied that there was any basis for the judge in the underlying action to grant an application for such an appointment. The defendant also contended that the transcript of a discussion in chambers between himself, the judge and the plaintiff in the underlying case reflected that at the time, the plaintiff and her mother decided to reject the offer. The defendant argued that the plaintiff failed to establish a breach of any standard or proximate cause and moved for dismissal at the close of the plaintiff’s case. The court concurred and dismissed the action.

REFERENCE  Docket No.L-1449-99; Judge Thomas Brown, 9-02.

Responsible Attorney:  Scott D. Samansky

Legal Malpractice – Defendant’s Verdict – New Jersey

Alleged negligent failure of plaintiff’s attorney in underlying red light/green light intersection collision case to adequately detail plaintiff’s position regarding times and distances from traffic light. Plaintiff found 50% comparatively negligent in the prior trial of underlying action, allegedly as a result of defendant’s negligence. Liability only.  Essex County, New Jersey

This was a legal malpractice action involving an underlying plaintiff who was found 50% comparatively negligent in the prior red light/green light intersection collision jury trial. The plaintiff contended that the defendant attorney did not discuss the distance from the intersection when the turn arrow light changed green and that as a result, the underlying defense counsel was able to utilize this omission to perform mathematical calculations to reflect that based upon speed and distance, the plaintiff would have proceeded through a red light. The plaintiff contended that her attorney, the defendant in this case, had incorrectly placed her twice as far from the intersection when the light turned to a full green, contrary to her deposition testimony and interrogatory answers. There was no eyewitness testimony as to the happening of the accident in the underlying trial, and the plaintiff contended that a particularly complete explanation of her description was, therefore, especially necessary. The plaintiff argued that if the defendant attorney had fully explained her description to the jury, they probably would have assessed a lower percentage of comparative negligence. The defendant contended that the case was properly presented and denied that there was any evidence from which a jury in this malpractice action should find that any different presentation in the underlying action would have impacted on that jury. The defendant attorney maintained that he had made a conscious decision not to elicit the 100-foot testimony from his client. The plaintiff argued that the defendant attorney had not made such a decision. The judge in this legal malpractice case directed a verdict in the plaintiff’s favor on two of three contentions of negligence, finding that the attorney’s statements in summation as to her speed and distance at 200 feet were negligent as a matter of law. The jury found for the defendant on the issue of proximate cause.

REFERENCE Plaintiff’s expert attorney: Anthony Abrosio from Belleville, N.J. Defendant’s expert attorney: Richard A. Amdur from Eatontown, N.J. Plt: Cobb. Docket L-2464-97; Judge Edith Payne, 12-30-01.

Responsible Attorney:  Scott D. Samansky

Premises Liability – Defendant’s Verdict – New Jersey

In favor of third-party defendant in subsequent third-party action $150,000 recovery

Negligent failure to clear room before testing sprinkler system. Explosion. Pipe strikes wall causing extremely loud noise. Significant bilateral hearing loss. Explosion allegedly caused by defectively manufactured coupling. Mercer County, New Jersey.

This was an action involving a plaintiff electrician in his mid-50s who was performing work in a small room of an office building nearing completion. At the time of the incident in question, a test of the sprinkler system was conducted by the defendant sprinkler installation company. The plaintiff was not employed by the defendant and was involved in different work. The plaintiff contended that during the test, an explosion occurred, propelling a pipe against an adjacent wall. The plaintiff was not struck by the pipe. However, the plaintiff maintained that the extremely loud noise caused a significant hearing loss and tinnitus which is permanent in nature. The plaintiff had contended that irrespective of the cause of the failure, the defendant was negligent in failing to clear the room before the test was conducted. The defendant questioned the extent of the hearing loss caused by the incident, contending that although the audiology testing showed some deficits, there were no prior tests with which to make a comparison. The plaintiff contended that he had no prior hearing difficulties. The plaintiff’s case against the defendant sprinkler installation company settled prior to trial. The defendant sprinkler installation company brought a third-party action against the manufacturer of a coupling used in the sprinkler system and maintained that the coupling was defectively manufactured, causing the explosion. The defendant contended that a vein of rust was noted on the coupling after the explosion. The defendant contended that the failure of the coupling would not have occurred unless it was defectively manufactured and that the vein of rust reflected such a defect. The third-party defendant denied that the coupling was defective or that the vein of rust was significant. The third-party defendant contended that the malfunction occurred as a result of improper installation. The sprinkler installation company settled with the plaintiff during trial for $150,000. The jury found that the defendant/third-party plaintiff had not proven that the coupling was defective and a no-cause verdict was entered on the third-party action against the manufacturer.

REFERENCE Laurendeau vs. Meadowlands Fire Protection Co. vs. Victaulic Company of America, et al. Docket no. L-4597-96; Judge Jane Grall, 6-01.

Responsible Attorney:  Scott D. Samansky

Legal Malpractice – Defendant’s Verdict – New Jersey

Legal Malpractice – Alleged negligent failure of attorney to advise condo association of claim for property damage before condo association takes control from developer and executes indemnification and hold harmless agreement in favor of developer. Bergen County

The plaintiff condominium association, comprised of condo owners, contended that the defendant attorney, who represented it in its dealings with the developer while it took control from the developer and in conjunction with typical transactions of this nature, executed a release, indemnification and hold harmless agreement in favor of the developer, negligently failed to ascertain the existence of a substantial property damage claim against the developer that was outstanding. The plaintiff maintained that as a result, it was liable for this claim. The defendant contended that he had a limited role, was only asked to forward the documents to the prior non-party attorney and denied that he had breached any duty. The defendant also argued that the underlying claim was a subrogation suit authorized by the plaintiff association and that it should have known about this claim. The plaintiff countered that at the time the association was substantially made up of prior owners and the plaintiffs did not have knowledge. The defendant established that one owner was a member at the time the prior claim had been made against the developer and argued that the association had notice without any advisements by counsel. The case was tried before the Court. The Court held that the defendant was not negligent. The plaintiff has filed an appeal.

REFERENCE Plt: Cross Creek Condo Assn. Docket no. L-5414-95; Judge Martin L. Kole, 1-99.

Responsible Attorney:  Scott D. Samansky

Defendant’s Verdict– Premises Liability – New Jersey

Slip and fall on ice and snow in store parking lot. Alleged inadequate access for pedestrian traffic. Liability only Hudson County.

The male plaintiff in his early 40’s contended that the defendant negligently failed to adequately clear ice and snow from its parking lot, resulting in his tripping and falling. The defendant maintained that the driveway leading to the parking lot was cleared and that the plaintiff chose to cross over the median area, causing the accident. The plaintiff maintained that there was no direct pedestrian walkway to the parking lot and that it was safer to walk on the median than to go to the cleared opening. The defendant also elicited testimony from the plaintiff that the median was the shorter route and the defendant argued that the plaintiff placed expediency above his own safety. The jury found that the defendant was not negligent.

REFERENCE Perez vs. The Sports Authority. Docket No. L-3633-96; Judge James W. Taylor, 4-99. Attorney for plaintiff: Marvin Walden of Greenberg & Walden in West New York

Responsible Attorney:  Scott D. Samansky

Product/Premises Liability- Defendant’s Verdict – New Jersey

Fall down escalator which allegedly stopped. The female plaintiff contended defendant store and service company negligently failed to maintain an escalator whereby it suddenly stopped causing plaintiff to fall forward and suffer a variety of injuries. Defendants demonstrated plaintiffs engineers opinion as to the cause of the stoppage was inconclusive. The jury found the defendants were not negligent.

Morrissey v. Value City Atlantic County

Responsible Attorney:  Scott D. Samansky

Supreme Court of New Jersey  – Appeal – Decision

Denise Sciarrotta, et al v. Global Spectrum, et al A-28-07

Argued  by Scott D. Samansky  February 20, 2008

Decided April 10, 2008

Rivera-Soto, J. writing for a majority of the Court

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.

In this appeal, the Court examines the limited duty rule, which applies to sports venues and addressed the peril of objects leaving the field of play that may injure spectators.  According to the limited rule, a sports venue owner or operator has satisfied its duty of care to spectators if it provides a screened seating that is sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion and if the owner or operator also provides protection in the most dangerous sections of the stands. The Court then considers whether the limited duty rule applies to practice or “warm-up” periods that occur before a game is actually played, and whether there is a duty to warn spectators about the risk of objects leaving the field of play.

On January 4, 2003, Denise Sciarrotta attended a professional hockey game between the Trenton Titans and the Jonestown Chiefs at the Sovereign Bank Arena in Trenton. Her seat in the stands was six or seven rows from the ice and above the Plexiglas protective barrier mounted on the side boards that surround the rink. She also was outside the areas of the rink surrounding the goals that are protected by netting that extends above the Plexiglas. During the warm-up period, when each team had as many as twenty-five pucks in use, an unidentified player took a practice shot at the goal. His puck struck a goalpost and caromed above the Plexiglas, injuring Sciarrotta. Sciarrotta filed this action alleging negligence by Global Spectrum, Comcast Spectator Co., Trenton Hockey Club, LLC the Trenton Titans, the Johnstown Chiefs, and the East Coast Hockey League, Inc., among others, either as the operators of the arena or as the owners, operators, or responsible parties for the teams playing on the ice that night.

The trial court granted a motion for summary judgment by the defendants, finding that they had fulfilled their obligations under the limited duty rule because the arena provided protective seating for spectators who might reasonably have requested it and because Sciarrotta presented no evidence to create a genuine issue of material fact as to whether the operators provided protection for spectators in the most dangerous sections of the stands.

Based on the differences between the activities that occurred during warm-ups and games, the Appellate Division reversed, concluding that there were questions of fact to be determined as to whether more adequately protective steps were available and should have been taken to minimize the risk of harm from a specific activity at issue. 392 N.J. Super. 403 (2007).

HELD: The limited duty rule, which concerns the provision of screened seating in certain areas of sports venues, applies to all activities on the field of play, including pre-game warm-ups. If a sports venue owner or operator complies with the limited duty rule, it has satisfied its duty of care to patrons in the stands and no action in negligence will lie for the peril of objects leaving the field of play. Furthermore, the limited duty rule does not impose a separate duty to warn of the risk of objects leaving the field of play.

1. The limited duty rule applies to sports venues in respect of a specific peril that of objects leaving the field of play that may injure spectators in the stands. Under the rule, a sports venue owner or operator that provides screened seating (1) sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion, and (2) in the most dangerous section of the stands, has satisfied its duty of care. The rule applies not only while the game itself is in progress, but whenever spectators are located in the stands. (Pp 10-11).

2. In Schneider v. Am. Hockey & Ice Skating Ctr., Inc., 342 N.J. Super. 527 (App. Div.) certif. denied, 170 N.J. 387 (2001), The Appellate Division held that a hockey rink operator has a limited duty to provide a protected area for spectators who choose not to be exposed to the risk posed by flying pucks and to screen any spectator area that is subject to a high risk of injury from flying pucks-a duty which may be satisfied by the provision of screened seats behind the goals. The Appellate Division then rejected the plaintiff’s negligence claim because, among other reasons, no evidence was offered that the unprotected seats at the side of the rink posed an unduly high risk of injury from flying pucks. Here, it is undisputed that Sciarrotta was seated in an area on the side of the rink that was not within the corners or end zones.  As such, the area was protected by the side boards topped by Plexiglas but not by protective netting. Sciarrotta’s seat was above the Plexiglas partition and she did not request a seat behind the protective netting. The facts of this matter present a textbook case for the application of the limited duty rule. (Pp.11-13).

3. The Court rejects Sciarrotta’s argument that her situation should be exempt from the application of the limited duty rule because she was injured during warm-ups when multiple pucks are on the ice, rather than during a game when only one puck is on the ice.  Although this Court geographically restricted the scope of the limited duty rule in Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 185 N.J. 70 (2005), by limiting its application to injuries to spectators that occur in the stands, that restriction was rejected by the Legislature in the New Jersey Baseball Spectator Safety Act of 2006. In the same statue, the Legislature also defined a professional baseball game as including pre-game activities. Therefore, the Court sees no reason to restrict the scope of the limited duty rule solely to the temporal limits of the game  itself. The purpose of our tort laws is to encourage reasonable conduct and, conversely, to discourage conduct that creates an unreasonable risk of injury to others.  The reasonable conduct to be encouraged here underlies the limited duty rule itself; added protection for those who are reasonably anticipated to request it as well as for those who, absent a request, nevertheless are located in an area of particular and enhanced danger. That standard of reasonableness cannot be transformed into some other, different standard simply because the game itself has not yet started, has started but play is not immediately developing, or has recently ended.  The Court reaffirms that, in respect of the peril from objects leaving the field of play, the limited duty rule sets forth the standard of care professional ice hockey rink owners or operators owe to spectators when they are located in the stands, regardless of the goings-on within the ice rink (Pp 13-17).

4. Finally, the Court rejects Sciarrotta’s argument that the defendant had a duty to warn her of the peril of pucks leaving the ice rink so that she could make an informed decision as to whether to assume that risk. The imposition of different duties of care for the same peril in the same location would confound the core purposes of tort laws. (Pp 17-20).

The judgment of the Appellate Division is Reversed, and the judgment of the Law Division dismissing plaintiff’s complaint with prejudice is Reinstated.

Justice Long, file a separate Dissenting opinion, in which Justices Albin and Wallace join, asserting that a posted warning advising of the danger of flying pucks and of the right to requested protected seating is in full conformity with our prior jurisprudence on the subject of duty and is an essential element of the limited duty rule.

Chief Justice Rabner and Justices LaVecchia and Hoens join in Justice River-Soto’s opinion. Justice Long filed a separate dissenting opinion in which Justices Albin and Wallace join.

Premises Liability – Defendant’s Verdict – New Jersey

Alleged four foot by four foot puddle in floral aisle of supermarket  – Plaintiff claims she slips while pushing shopping cart and does not fall – alleged tears to knee and shoulder. Bergen County

The plaintiff, supermarket shopper in her mid 50s, contended that, as she was wheeling her shopping cart in the floral aisle, she slipped on an approximate four foot by four foot puddle of water.  The plaintiff indicated that she did not fall. The plaintiff maintained that she suffered a tear to the medial meniscus of the left knee and a left shoulder tear.

The defendant presented an employee who testified that she had watered the plant a few minutes earlier and noticed that an approximate six inch spot was wet. The employee maintained that she placed a wet floor sign over the area, went to retrieve the mop and bucket and that she heard the plaintiff yell that she slipped. The defendant’s employee contended that the small puddle she noticed when she was watering the plant and over which she had placed the sign, was the only puddle present.

The plaintiff’s orthopedist maintained that the injuries are permanent in nature and that arthroscopic surgery had been recommended. The plaintiff did not undergo the surgery. The plaintiff had denied prior knee or shoulder complaints and the defendant confronted her with records reflecting that she had undergone physical therapy for both knees approximately four months earlier and had received an injection for left shoulder pain approximately one year before the incident.

The jury found that the defendant was not negligent.  Reference Clark v. The Great Atlantic & Pacific Tear Co. Docket No. BER-L-3931-05; Judge Joseph Conte, 9-07. Responsible Attorney: Christopher E. McIntyre

Premises Liability – Defendant’s Verdict – New Jersey

Alleged dangerous parking deck stairway at defendant mall – Alleged absence of adequate visual cues – Plaintiff patron trips and falls after encountering “step”, characterized by defendant as curb, immediately beyond concrete base at bottom of stairway – Fractured right knee and torn right rotator cuff – Liability only.  Essex County.

The parties had stipulated gross damages of $75,000 in this case which was then tried on liability only. The plaintiff contended that the bottom of the parking deck was dangerous because within five feet of the apparent last step, was another step, over which she tripped. The plaintiff contended that the defendant should have extended the handrail. The plaintiff also maintained that the visual cues were not adequate. The plaintiff’s expert asserted that the parking deck stairway should have been designed in a manner that there was a recued ceiling height towards the bottom which would tend to make patrons look downwards.

The defendant denied that the plaintiff tripped over a “step”. The defendant maintained that she fell over a curb that was situated directly beyond the concrete base at the end of the stairway. A mall roadway was beyond the curb. The defendant’s engineer maintained that yellow paint on the curb and roadway arrows for vehicles constituted adequate visual cues. The defense expert also denied that any code provision relating to stairways were applicable.

The jury found five to one that the defendant was not negligent. Reference McHenry v. The Mall at Short Hills, Docket No. ESX-L-5722-05; Judge Claude Coleman, 10-08. Responsible Attorney:  Christopher E. McIntyre

Premises Liability – Defendant’s Verdict- New Jersey

Alleged negligent maintenance of supermarket parking lot – Plaintiff bicyclist allegedly strikes depression and falls from bike – Liability Only. Middlesex County

The female plaintiff bicyclist in her 30s contended that an approximately 40 foot long, two inch wide and one inch deep depression was present in the area where two portions of the asphalt lot met. The plaintiff’s engineer contended that this depression created a hazard which the plaintiff maintained resulted in the tire of her bike stopping short, propelling her to the ground.

The defendant contended that the alleged defect only constituted a seam which was created more than ten years earlier in conjunction with the paving process and the defendant’s supermarket and shopping center owner denied that it constituted a hazard. The Statute of Repose, precluding an action against a contractor for alleged defects created more than ten years before an accident, applied and the contractor’s motion for dismissal was granted at the close of the plaintiff’s case. The defendant’s engineer maintained that the seam was not sufficiently wide or deep to cause the bike to stop short. The defendant also questioned whether the accident occurred, pointing to the absence of a report at the scene and the inability of the plaintiff to identify the individual who purportedly assisted her at the scene and drove her home.

The jury found for the defendants. Reference Hannah v. Shop-Rite of Carteret and JLJ Assoc., et al. Docket No. MID-L-4885-90; Judge Lawrence Lerner, 5-6-93.

Responsible Attorney: Stanley P. Fishman

Premises Liability – Defendant’s Judgment at trial- New Jersey

Plaintiff trips and falls on wire hanger situated on asphalt outside pick-up department at premises of defendant store – Partial ACL tear – Chip fracture of radial phalanx. Essex County

The female plaintiff in her mid-40s contended that the defendant department store negligently failed to adequately inspect and maintain the area outside of its pick-up department. The plaintiff contended that a wire hanger from the defendant’s store was dropped onto the asphalt and what as a result of the alleged negligent failure to conduct adequate inspections, she tripped and fell over the hanger, suffering a partial ACL tear and a chip fracture to the radial phalanx.

The defendant questioned whether the hanger came from its store, pointing to evidence that it was twisted in such a manner that it appeared to have been used to open a car door. The defendant further denied that it had any notice of the presence of the hanger, which was described by the plaintiff as dark in color and meshing to some degree with the color of the asphalt.

The court found as a matter of law that the plaintiff had not established notice and dismissed the action at the close of plaintiff’s case.  Reference Whitehead v. Taubman Company, Docket No. ESX-L-003723-02; 1-04

Responsible Attorney:  Christopher E. McIntyre

Premises Liability – Defendant’s Verdict – New Jersey

Alleged dangerous exit at roller skating rink – Fall down – Shoulder Fracture – Liability Only. Ocean County

Gross damages were stipulated at $65,000 in this case, in which the plaintiff, in her early 60s, tripped and fell, suffering a fractured shoulder when she was exiting the defendant’s Jackson Skating Center, premises. The plaintiff, who was to attend a birthday party, initially parked in a loading zone because the lot appeared to be full. She went in to ask where she could park and fell as she was exiting. The plaintiff maintained that although the facing on the step which she could see on her way into the  premises was painted yellow, the top was not, and that she forgot that the step down was present as she was walking out.

The plaintiff’s engineer maintained that the step-down was a dangerous condition wand was not sufficiently marked. The defendant’s engineer contended that the premises were properly marked and were safe. The expert contended that the color of the floor beyond the step-down was different, addition to the visual cues. The defendant’s expert also pointed out that several, nine inch by six inch, signs, advising of the step-down were present. The plaintiff maintained that her view of the signs was obstructed by other patrons. As a part of the stipulation, the plaintiff was permitted to tell the jury that she sustained a fractured shoulder and knee contusion. No other damages’ evidence was admitted.

The jury found that the defendant was not negligent. Reference Zirin v. Jackson Skating Center, Inc. Docket No. OCN-L-2838-05; Judge Thomas E. O’Brien, 9-07

Responsible Attorney:  Christopher E. McIntyre

Premises Liability/Slip And Fall – Verdict – New Jersey

We were retained by a risk retention group to represent one of its member’s supermarkets in connection with a fall down on water at a Food Town Supermarket.

Plaintiff claimed she sustained various soft tissue injuries to her neck, low back and knees.

Discovery revealed that water on the floor was caused by an employee of the supermarket mopping near where Plaintiff fell.  However, Plaintiff conceded at her deposition that she had seen a porter mopping in “the vicinity” where Plaintiff fell prior to her fall.

The case was tried.  In addition to the aforesaid liability arguments and obvious comparative negligence on the part of the Plaintiff, we argued that Plaintiff’s injuries were pre-existing and degenerative, and that at most, she sustained an exacerbation of the same.

The verdict clearly reflected our arguments with Plaintiff receiving an award of merely $9,600.00, reduced to $4,800.00 in light of the finding of 50% comparative negligence on the part of the Plaintiff.

Garcia v. Livingston Food Corporation d/b/a Food Town Supermarket, Superior Court, Middlesex County, Docket No. MID-14439/06; Judge Paley.

Responsible Attorney:  Mitchell B. Levine

Personal Injury, Products’ Liability- Defendant’s Verdict-New Jersey

Automatic door in store knocks down shopper – wrongful death

An 85 year old shopper entered the vestibule of defendant’s store. Instead of proceeding forward through the inner door she moved left and then back against the stationary panel over which the automatic sliding door opens, but after the door had closed. While shopper leaned on the panel, another customer approached from the outside, the door opened and knocked her to the floor as captured on the store surveillance video played for jury at trial. Shopper was hospitalized for complaints to her buttocks and died one week later of a heart attack.

The estate asserted the store should have had a guardrail in place preventing access to area, or used a different door, and the warning labels were insufficient despite no code, standards or ordinance violations with respect to the door and labels.

Store maintained no barrier of any kind could be present as the door and panel were designed to “breakout” for quick exit in the event of an emergency pursuant to the fire safety code.

Estate also asserted a door design defect claim, but settled with the manufacturer prior to trial for an undisclosed amount. Estate argued decedent was in good general health at the time of the accident, and the injury resulting from contact with the door precipitated deterioration leading to the heart attack and death.

Store presented evidence decedent suffered from certain pre-existing maladies, including during the recent weeks prior to the accident, arguing these were what led to her death and not the trauma.

The jury found in favor of both the store and the settling defendant.

Date of verdict March 5, 2012

Judge Honorable Arthur Bergman J.S.C. Superior Court of New Jersey, Middlesex County, Law Division

Frank Ottaviano Administrator Ad Prosequendum of the Estate of Theresa Ottaviano v. Shop Rite of Carteret, Inc. and Besam, USA, Inc.

Responsible Attorney: Michael Forrester, Esq. of Perrota, Fraser & Forrester for plaintiff.
Scott D. Samansky, Esq. of Fishman McIntyre P.C. for defendant Shop Rite
Eric Weiss, Esq. of Marshall Dennehy Warner Coleman & Goggin for defendant Besam US

$24,396 GROSS VERDICT REDUCED BY 40% COMPARATIVE NEGLIGENCE
Trip and fall in hole on public sidewalk abutting defendant supermarket – Severe non-fracture ankle injury – Subtalor dislocation – Six month inability to be weight bearing.

Essex County, NJ

The plaintiff in her early 30s contended that she tripped and fell in an approximate 2 1/2 ft by 1 ft hole that was situated on the public sidewalk abutting the defendant supermarket. The plaintiff contended that the hole had been present for a substantial period and that the defendant should have repaired it.  The defendant maintained that the cause of the incident was the failure of the plaintiff, who was very familiar with the area, and who used this supermarket for regular shopping, to make better observations.
The plaintiff countered that she was distracted by her concern for the safety of her children who were in front of her, accounting for her not observing the hole.
The defendant countered that the plaintiff had not made similar claims of distraction during discovery. The defendant also contended that in any event, the children were sufficiently far enough ahead that plaintiff saw, or should have seen the hole.

The plaintiff maintained that she suffered a subtalor dislocation. The plaintiff’s examining orthopedist maintained that the plaintiff was non-weight bearing for approximately six months. The physician contended that because of the severe ankle injury, the plaintiff will suffer permanent pain and that traumatic arthritis is likely in the future.
The plaintiff missed six months from her customer service job.
The defendant did not present its examining physician.

The jury found the defendant 60% negligent, the plaintiff 40% comparative negligent and rendered a gross award of $24,396, including $16,000 for pain and suffering and loss of enjoyment of life and $8,396,86 for past lost wages. The jury also declined to render an award to the husband on his per quod claim.

REFERENCE

Plaintiff’s orthopedic expert: Michael Rieber, MD from Springfield, NJ.

Catchcart vs. Fine Fare Supermarket. Docket no. ESX-L-7941-09;

Judge Theodore Winnard, 04-12-12

Attorney for defendant: Christopher McIntyre and Scott D. Samansky of Fishman McIntyre P.C. in East Hanover, NJ.

New York Cases

Premises Liability/Construction/Toxic Torts/Punitive Damages- New York

The firm was retained to represent Soho House, an exclusive “members only” hotel in the Manhattan meat packing district.  During the conversion of the upper floors of the building from a warehouse to the hotel, a health spa was installed on the lower floor of the hotel; one floor above a high end furniture retailer – Vitra.  During the construction of the spa and subsequent to the opening thereof, substantial water leaks occurred into the space below occupied by Vitra.  While many of the leaks resulted in damage to much of Vitra’s showroom, including furniture, several leaks occurred behind the walls and under the floors, eventually resulting in significant mold growth throughout various portions of Vitra’s space.

Vitra brought suit against Soho House claiming a host of legal theories, including gross negligence and the creation of a nuisance.  Vitra further claimed that shortly after the initial leaks, it pleaded with Soho House to cease it operations and undertake additional waterproofing measures; allegedly to no avail.  Consequently, Vitra sought millions in punitive damages.  Moreover, Vitra filed multiple Orders to Show Cause to attempt shut down Soho House’s operations, each of which were successfully defeated by our office.

Vitra further claimed approximately $500,000.00 in past and future loss of business as a result of the leaks.

In motions made on behalf of Soho House during the pendency of the case, we were able to convince the Court to dismiss Vitra’s loss of business claims.  Additionally, we successfully secured summary judgment dismissing Vitra’s multimillion dollar punitive damages claims against Soho House.  A copy of the Court’s decision can be viewed at:

http://decisions.comurt.state.ny.us/SCAS_docs/2007OCT/3001182592003017SCIV.pdf

Vitra appealed to the Appellate Division, Second Department.  In a decision rendered in April, 2008, the Appellate Division upheld the dismissal of Vitra’s punitive damages claims.  A copy of the Court’s decision can be viewed at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_03713.htm

The remaining claims of damages of Vitra were ultimately resolved, with Soho House securing significant contribution from various contractors we had brought into the case as third-parties.

Vitra, Inc. v. Soho House, LLC, et als., Supreme Court, New York County, Index No. 118259/03; Justice Ling-Cohen.

Responsible Attorney:  Mitchell B. Levine

Premises Liability – Summary Judgment Granted – New York

We were retained to represent a national janitorial contractor for Sears department store at a Sears located in Suffolk County, New York.

The Plaintiff claimed that she sustained significant personal injuries when she was caused to slip and fall on water on the floor several feet into the store.  Plaintiff claimed at the time of the accident, and for several hours thereto, it was raining.

Pretrial discovery revealed that our client, Control Building Services, Inc., one of the nation’s largest janitorial firms, did not have sufficient legal notice of the condition as alleged by Plaintiff to incur liability.  Discovery revealed that an employee of Control had last been in the area approximately 30 minutes prior to Plaintiff’s fall and that no wetness was detected at that time.  Discovery further revealed the lack of any notification made on the part of Sears to Control to dry the area in the interval.  Thus, while the Court did not grant summary judgment to Sears, Control Building Services’ motion for summary judgment was granted, and the case dismissed against it.  A copy of the Court’s decision can be viewed at:

http://decisions.comurt.state.ny.us/SCAS_docs/2007MAY/5100048472004/SCIV.pdf

Anagnostopoulos v. Sears Roebuck and Co., et als., Supreme Court, Suffolk County, Index No. 4840/04; Justice Doyle.

Responsible Attorney:  Mitchell B. Levine

Premises Liability/Construction Defect – Summary Judgment Granted – New York

We were retained by an insurance company to represent a general contractor, Michael J. Fitzgerald Contracting Co., to represent it in connection with a claim asserted by a Deacon at a Church located in Pawling, New York.  The Plaintiff claimed that he tripped and fell on an approximate one and one half inch height differential between two adjacent slabs of concrete.  Plaintiff’s injuries were substantial and included fractures of the neck resulting in immobilization of the cervical spine for several months.  The Plaintiff sued both the Church and our client claiming negligence in the original construction of the walkway upon where he fell, and in the Defendants’ alleged failure to maintain the area.

The contractor had constructed the walkway nearly five years prior to Plaintiff’s accident.  Upon completion of the work, the same was accepted by the Church, and a Certificate of Occupancy was issued by the Township Building Department.  However, approximately 18 months after the work was completed, the defect was first noticed.

Summary judgment was successfully secured on behalf of the contractor as we were able to demonstrate that the defect was not a result of any faulty construction or workmanship on the part of the insured, but rather, due to unrelated causes.  Moreover, despite contention by the Co-Defendant, the Church, that there was an issue as to whether the defect complained of actually first presented itself in the one year following completion of the project (the insured gave the Church a one-year warranty against defects) we were able to convince the Court that such contentions were speculative.  Consequently, summary judgment, dismissing the Plaintiff’s Complaint against the insured, as well as the Church’s cross-claims, was secured.

Tobin v. St. John’s Roman Catholic Church and Michael J. Fitzgerald Contracting Co., Supreme Court, Dutchess County, Index No. 5558/2005; Judge Brands.

Responsible Attorney:  Mitchell B. Levine

Premises Liability/Construction/Labor Law/Traumatic Brain Injury – Trial – New York

The firm served as co-counsel in a damages only trial in the Supreme Court, Bronx County in connection with a man who alleged a traumatic brain injury, as well as a host of severe orthopedic injuries, following a 30 foot fall at a construction site.

Plaintiff alleged that as a result of the fall he sustained brain shearing, resulting in a traumatic brain injury, including cognitive defects, behavioral defects, personality disorder and a host of other symptoms, including difficulty concentrating and sleeping.  Plaintiff, a 23 year old bricklayer at the time of the accident, claimed an inability to work in the construction field due to his orthopedic injuries, as well any other vocation as a result of his alleged cognitive defects.  Orthopedically, Plaintiff sustained a cervical spine fracture, three fractures to the thoracic spine as well as an “amputated” fracture to the iliac crest of the pelvis.  Due to the fractures, Plaintiff claimed an inability to bend or lift, and claimed that the pelvis fracture did not heal properly, resulting in difficulty walking and balance problems.  Plaintiff also sustained a large, disfiguring serpentine scar on his low back.

The case was tried over three weeks in January 2009.  Plaintiff called approximately 14 witnesses, including 11 experts such as neurologists, a neuropsychologist, an orthopedist, a vocational rehabilitation expert, an economist and an accountant.  Plaintiff’s experts opined that his economic loss (lost wages and benefits) totaled $8,800,000.00.  Plaintiff’s experts further opined that Plaintiff’s future medical costs were in excess of $4,000,000.00.  Plaintiff further claimed nearly 50 years of future pain and suffering, in addition to an approximate four year pretrial claim of pain and suffering.

After deliberating for two days, the jury awarded Plaintiff approximately $1,100,000.00 for both past and future lost wages, which was approximately $400,000.00 less than our own experts had opined Plaintiff’s economic loss to be!  Moreover, the jury awarded Plaintiff only $600,000.00 for future medical costs, which again was less than what our own expert opined as Plaintiff’s minimum future medical care.  Finally, for past (approximately four years) and future (approximately 50 years) pain and suffering, Plaintiff’s counsel asked the jury for awards of $750,000.00 and $2,500,000.00, respectively.  We recommended to the jury a total, for both past and future pain and suffering, of $300,000.00.  The jury awarded the Plaintiff $124,000.00 for past pain and suffering and $150,000.00 for future pain and suffering; virtually what we had asked the jury to award.

Magee v. 438 East 117th Street Realty, et als., Supreme Court, Bronx County, Index No. 20708/05; Judge Green.

Responsible Attorney:  Mitchell B. Levine.

Motor Vehicle/Transportation Liability- Summary Judgment Granted –  New York

We were retained by Coach Bus to represent it in connection with a personal injury lawsuit brought by a passenger on the insured’s bus who claimed injuries when the bus collided with another vehicle.

We successfully secured summary judgment on behalf of the bus by establishing that the accident was the sole result of the other vehicle in following too closely, despite opposition by the Co-Defendant driver.  A copy of the Court’s decision can be viewed at:

http://decisions.comurt.state.ny.us/SCAS_docs/2008MAY/3001190072006001/SCIV.pdf

Riedewald v. Hudson Transit Lines, et al., Supreme Court, New York County, Index No. 119007/06; Judge Kaplan.

Responsible Attorney:  Mitchell B. Levine

Design Defect/Pedestrian Knockdown – Summary Judgment granted – New York

We were retained by an insurance company to represent The City of Yonkers and a general contractor, WBP Central Associates, to defend them with respect to severe injuries (a fractured leg and pelvis) sustained by a pedestrian while attempting to cross the street who was struck by a motor vehicle owned and operated by a Co-Defendant.

At the time of Plaintiff’s accident, the contractor was in the midst of constructing a strip mall at the corner of a major intersection.  Plaintiff claimed he attempted to cross the intersection within the crosswalk.  With respect to allegations against The City of Yonkers, Plaintiff claimed that the timing of the traffic light was either set incorrectly, or set in such a manner as to provide insufficient time for a pedestrian to safely cross the four lanes of traffic.

With respect to the contractor, the Plaintiff claimed that in redesigning the intersection as part of the overall construction, it had turned the power off to the “walk/don’t walk” sign, preventing Plaintiff from properly and timely crossing the street.

During discovery we were able to elicit from the Plaintiff certain admissions, as well as locate an eyewitness, which confirmed that when Plaintiff attempted to cross the street, he was actually approximately 15 feet outside of the crosswalk.  We were therefore able to convince the Court that there was no causation between any design and/or construction defect, and Plaintiff’s accident, as any reliance by Plaintiff upon the “walk/don’t walk” sign was immaterial.  We were further able to convince the Court that to the extent that any liability existed, it was solely on the part of the driver who struck the Plaintiff.  As a result all claims were dismissed against our clients.

Lulgjuraj v. The City of Yonkers, et als., Supreme Court, Westchester County, Index No. 10197/04; Justice Donovan.

Responsible Attorney:  Mitchell B. Levine

Premises Liability/Construction/Labor Law/Indemnification – Appeal – New York

We were retained by a Third-Party Administrator to represent a general contractor with respect to an addition being constructed by the contractor, which hired the Plaintiff’s employer for the purposes building an elevated exterior deck as part of the construction.  While in the midst of construction, the Plaintiff, a laborer, fell off the ladder he was working upon, falling 15 feet to the ground.

Plaintiff brought suit against the insured alleging various causes of action, including violations of New York’s Labor Law.  In turn, we brought suit against Plaintiff’s employer seeking contractual indemnification.  While the claims between the Plaintiff and the insured were eventually settled, the trial court denied our motion for summary judgment for defense and indemnification against the Plaintiff’s employer, finding that the provision of the contract between the insured and Plaintiff’s employer providing for indemnification to be “ambiguous.”

We filed an appeal with the Appellate Division, Second Department.  Following oral argument, the Appellate Division reversed the trial court and ordered that Plaintiff’s employer indemnify our client not only for the amount paid to the Plaintiff in settlement of Plaintiff’s claim, but for all attorneys’ fees and costs incurred by our client in defense of the action.  A copy of the Appellate Division’s decision can be viewed at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_03713.htm

However, it was ultimately determined that Plaintiff’s employer did not have insurance coverage in effect at the time of Plaintiff’s accident to cover the claim, including the indemnification obligation.  Fortunately, however, at the time the initial demand for defense and indemnification was made to the Plaintiff’s employer, a demand was also made to the Plaintiff employer’s worker’s compensation carrier; generally known as”1(B)”coverage.  1(B) coverage generally becomes primary, casualty coverage, where there is no effective primary coverage, as was the case here.  Despite the fact that the workers’ compensation carrier only provided worker’s compensation coverage, when it as initially notified of our insured’s claim, it failed to disclaim coverage.  Consequently, the compensation carrier’s attempt to disclaim coverage well over a year after it had been put on notice was ineffective.  As a result, we were able to return for our carrier the majority of the monies it paid in settlement and attorneys’ fees/costs.

Arguetta v. Pomona Panorama Estates, Ltd., et als., Supreme Court, Rockland County, Index No. 764/04; Justices Weiner and Nelson.

Responsible Attorney:  Mitchell B. Levine

Motor Vehicle/Punitive Damages – Favorable result- New York

We were retained by a Third-Party Administrator to represent a well known “hip hop” music artist, who was alleged to have intentionally run down the Plaintiff, while the Plaintiff was in an intersection riding a bicycle.  Plaintiff sustained various personal injuries, but claimed entitlement to punitive damages against our client for allegedly purposefully and intentionally knocking down the Plaintiff with her Rolls Royce.

Although subject to a Confidentiality Order, we satisfactorily resolved the claim, including the punitive damages claim assessed against our client, for a nominal amount and substantially less than it would have cost to merely try the case.

Supreme Court, Kings County.

Responsible Attorney:  Mitchell B. Levine

Premises Liability/Fall Down/Insurance Coverage – Trial – New York

The firm was retained by the owner of a laundromat to represent it in connection with a fall down which occurred within the laundromat leading to a premises liability lawsuit being filed against it in the Supreme Court of New York, Bronx County.

Our client learned of Plaintiff’s accident on the day thereof.  However, due to the nature of the accident, the client did not believe his company faced liability for the accident.  Thus, the client did not report it to his insurance carrier until three months later, when our client was served with a Complaint in the Bronx County action.  The insurance company disclaimed coverage, contending our client did not timely notify it of the occurrence.

On behalf of the client, we filed a declaratory judgment action against the insurance carrier seeking coverage, including indemnification for the claimant’s underlying loss.  Following discovery, the case was tried in United States District Court, Southern District of New York, before United States District Judge Baer in May 2008.  Following trial, Judge Baer issued a written decision finding in favor of our client and obligating the insurance company to provide a defense and indemnification in the underlying action to the laundromat.

The Court’s decision can be viewed at:

https://ecf.nysd.uscourts.gov/doc1/12715126686

Superlaundryland, Inc. v. U.S. Underwriters Insurance Company, United States District Court, Southern District of New York, Docket No. 07-cv-2319 (HB); Judge Baer.  Responsible Attorney:  Mitchell B. Levine

Premises Liability/Construction Defect-Summary Judgment granted-New York

The firm was retained by Highlands Insurance Company to represent a general contractor, VRD Construction Company, with respect to a fall down which occurred on Westchester Avenue in the Bronx, New York.  Plaintiff claimed that her fall was a result of a portion of the street being in disrepair.

During discovery, we elicited admissions from the Plaintiff with respect to the precise spot in which she fell and the precise nature of the defect.  These admissions foreclosed the possibility that our client, which had repaved other portions of the street around the time of the Plaintiff’s accident, was responsible for the defect complained of by the Plaintiff.  We were able to convince the Court that Plaintiff’s claim (that the defect arose out of our client’s general work in the area) was too speculative to proximately link such work with the specific defect claimed by the Plaintiff.  Despite vigorous opposition to the motion for summary judgment by Plaintiff, as well as opposition by other parties in the case (other contractors and the City of New York), the Court agreed with our position and dismissed all claims against our client.

Rodriguez v. The City of New York, et als., Supreme Court, Bronx County, Index No. 29934/02; Justice Schachner.

Responsible Attorney:  Mitchell B. Levine

Premises Liability/Construction Defect- Summary Judgment Granted-New York

The firm was retained by an insurance company to represent Manetta Industries, a public works contractor.

The Plaintiff claimed that she tripped and fell while traversing Court Street, in front of the Kings County Courthouse, claiming that the crosswalk was in “disrepair” and was pocked with potholes and other defects.  Although Plaintiff sued various entities, including the City of New York, Plaintiff’s discovery focus was upon our client since according to the Plaintiff, at the time of her accident she noticed machinery with our client’s name inscribed across the street from where she fell.

Our client was, in fact, performing repairs to the crosswalk “catty-corner” to the crosswalk in which Plaintiff fell at the time of her accident.

The proof in discovery revealed that our client, at the time of Plaintiff’s accident, had yet to commence any repairs to the crosswalk in which Plaintiff fell.  Additionally, our investigation revealed that while the City of New York had authorized our client to commence the repairs, it was directed that the work not actually start until two days after Plaintiff’s accident.  We were able to convince the Court that notwithstanding the fact that our client’s work to the crosswalk at issue was considered “pending”, until such work actually commenced, our client did not have an obligation to the Plaintiff, and also did not have a duty to warn of any dangers since it had not legally assumed control over the area.  We were further able to demonstrate that Plaintiff could not prove any reliance upon our client to warn of the danger or otherwise protect the area.  The Court agreed with our position following oral argument (which lasted approximately 90 minutes).  Consequently, the case against our client was dismissed.

Rosenstein v. Consolidated Edison, et als., Supreme Court, Kings County, Index No. 26245/03; Justice Hurkin-Torres.

Responsible Attorney:  Mitchell B. Levine

Premises Liability/Construction Accident/Labor Law – Dismissal at Trial – New York

We were retained by a Third-Party Administrator to represent The Carlton Hotel in Manhattan.  At the time of Plaintiff’s accident, the Hotel was undergoing major renovations to the lobby.  The Hotel hired a general contractor, which in turn hired various subcontractors, to perform the renovation.  An employee of one of the subcontractors was injured while walking along the edge of a piece of sheetrock which was being used as a barricade over an open area to the basement.

Plaintiff argued that he was using the sheetrock as a platform or passageway; we argued that sheetrock was not intended as such and that Plaintiff was simply seeking a “shortcut”.  We further argued that the nature of the sheetrock was clearly and solely as a barricade; not a means of passage.

We filed a motion for summary judgment seeking to dismiss Plaintiff’s various Labor Law causes of action.  Incredibly, the Court granted most, but not all, of the relief we sought, leaving one claim open, that under the “scaffold law.”

We immediately filed a notice of appeal.  However, while the appeal was pending, the case came up for trial.  We refused to contribute towards any potential settlement, insisting that we would prevail before the jury or the Appellate Court.  However, at the commencement of jury selection, and at our urging, Plaintiff agreed to dismiss the remaining claim against our client.

Lynn v. Madison Real Estate Associates, et als., Supreme Court, New York County, Index No. 120218/03; Justice Smith.

Responsible Attorney:  Mitchell B. Levine