Commercial Litigation

Yellow Book, U.S.A., Inc. v. Ambassador Publications, L.L.C. (Sup. Ct. Nassau Co.) Plaintiff, the leading independent publisher of yellow pages directories, sued our client, a much smaller local yellow pages directory publisher, alleging various claims, including theft of trade secrets and tortious interference with contract, based on our client's hiring of a former salesman for plaintiff in alleged violation of a contractual covenant restricting his post-employment competitive activities. Plaintiff moved for a preliminary injunction to restrain our client from employing the salesman in violation of the covenant. The firm successfully opposed the motion. The Court held that plaintiff had failed to make the requisite showing necessary to obtain a preliminary injunction, in that, among other things, plaintiff could not show that it was likely to succeed on the merits or that it would be irreparably harmed absent injunctive relief since money damages were available even assuming that the covenant was valid and had been violated. Subsequently. the court granted our motion to dismiss the plaintiff's claims for defamation and tortious interference with business advantage on the grounds that they failed to state a cause of action.

Alan Gelb, the Chairman of our Commercial Litigation group, made new law in the New York Court of Appeals in Parrott v. Coopers & Lybrand, 95 N.Y.2d 479 (2000). There, the Court applied strict rules to determine the existence of a relationship equivalent to privity in affirming an award of summary judgment which dismissed a complaint for accounting malpractice and negligent misrepresentation. The decision is of importance due to its dismissal of the claim by a former employee of the accounting firm's client on the grounds that there was no privity between the accounting firm and employee despite the accounting firm's written acknowledgment that its valuation report was to be used "for stock transactions involving employees of the Company." Plaintiff was a former employee of a private company whose stock value was determined in a valuation report prepared by the accounting firm. His contract with the Company provided that the value of his stock, to be repurchased in the event his employment was terminated, was to be fixed by a third-party valuation. The Court of Appeals ruled that he could not assert any claims against the accounting firm, with which he did not have a relationship akin to privity.

In another case brought by Mr. Gelb on behalf of a Big 4 public accounting firm against several former partners in one of its Latin American offices, he successfully sought enforcement of multiple obligations which the Respondents had repudiated. The Respondents had withdrawn from the partnership to join a competing accounting firm. In the process, they breached their fiduciary duties and obligations under their partnership agreement by soliciting clients and employees of the firm, by delivering confidential information of the firm, and by performing services for firm clients in competition with the firm. After three days of hearings, the case was settled.

Mr. Gelb recently won an NASD arbitration on behalf of a major financial institution. The claimant alleged that the broker had provided misleading investment advice that caused him to lose in excess of $1,000,000. In fact, the broker had recommended that the client sell stock and most of the trades were client-initiated. The panel rejected the claim that the broker was required to create an exit strategy and buy "protective puts." The panel dismissed the case and directed that it be expunged from the broker's CRD record.

The firm successfully obtained a pre-answer dismissal in  Direct Casket v. SCI Management Corp (S.D.N.Y. 2002). There, plaintiff, a casket retailer, sued leading funeral firms and trade associations alleging various antitrust claims. The District Court (Wood, J.) granted our motion to dismiss the complaint for failure to state an antitrust claim.          

The firm achieved a notable success for a client in an intellectual property matter entitled New York Funeral Chapels, Inc. v. Kallenberg (S.D.N.Y. 2001). Our client learned that a competitor had misappropriated its name for use in a "Yellow Pages" directory and was seeking to divert the client's business. The client sued for unfair competition in federal court, and obtained a temporary restraining order and then a preliminary injunction, and ultimately a permanent injunction barring the misappropriation. Judgment was also entered in favor of our client for damages and attorney's fees. The entire judgment was collected.

In another intellectual property matter handled by the firm, Barris v. Hamilton (S.D.N.Y. 1999), copyright infringement claims were dismissed against our client, the Museum of Contemporary Art Los Angeles, which had displayed an artwork that featured an allegedly copyrighted photograph of Marilyn Monroe. The Court dismissed the action because it was demonstrated that the plaintiff, a photographer, had not renewed his copyright in the allegedly infringed photograph.

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Construction Litigation

On April 24, 2007, the New York Law Journal, 4/24/2007 NYLJ 22, (col. 1), published the decision in Castillo v. 711 Group, Inc. as its "Decision of the Day." This appeal was successfully argued by Senior Parnter Scott Miller and Senior Associate Mark Wellman of the Firm's Construction Practice Group. The Second Department clarified the definition of "total loss" of an index finger, as well as what constitutes a grave injury under Workers' Compensation Law.

In another construction matter, the firm had summary judgment affirmed by the Second District of the California Court of Appeals in Sheeler v. Greystone Homes. The court opinion establishes new law and is, therefore, of some significance in the construction industry. The court held that the doctrine of "nondelegable duty" does not apply to a general contractor for injury to an employee of a subcontractor. This issue had been left open in a line of California Supreme Court decisions starting with Privette and, at our invitation, the Court held that the doctrine was incompatible with the Privette line of cases.

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Dental Malpractice

Kevin Ryan of our Dental Malpractice group successfully obtained an affirmance from the US Court of Appeals, 2nd Circuit, on a dismissal of claims against our client (and other governmental defendants). The plaintiff claimed his 8th and 14th Amendment rights were violated by the prison staff's failure to provide appropriate dental care which led to the extraction of a tooth, gum resection and a diastoma. Our client was a dentist under contract to the Dept. of Justice, Bureau of Prisons to provide dental care on a fee for services basis. The court issued an order granting summary judgment to all but one governmental defendant and our client. The order specifically held that the plaintiff's claims at best gave rise to a cause of action for malpractice, not a violation of constitutional rights. We argued that although the client had not moved for summary judgment, the claims against her should be dismissed because plaintiff was collaterally estopped by the court's decision and order. The court agreed and dismissed the claims against the client.

Kerry J. Kaltenbach recently won a defense verdict in favor of the largest dental school in the New York Metropolitan Area after a six day jury trial in the Supreme Court, New York County in which the plaintiff alleged that one of its oral surgeons committed malpractice in connection with a jaw advancement surgery.

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Directors and Officers

Parrot v. Coopers & Lybrand, 95 N.Y. 2d 479 (2000). Alan Gelb, the Chair of our Commercial Litigation group, obtained a dismissal of a claim by a former employee of a major accounting firm's client on the grounds that there was no privity between the firm and the employee. Mr. Gelb achieved this result despite the accounting firm's written acknowledgement that its valuation report was to be used for stock transactions involving such employees.

We have litigated concerning the issue of a private right of action under Section 304 of the Sarbanes-Oxley Act, which enables issuers to recover certain payments made to officers and directors based on erroneous financial certifications.

We successfully defended an antitrust claim brought against our client, a major funeral firm, and other such firms and trade groups, alleging an attempt to monopolize the market. District Judge Wood dismissed the complaint based on our pre-answer motion.

We have represented corporations and their officers and directors in a broad range of employment cases in federal and state court, before administrative agencies and in arbitration, including claims involving covenants restricting competition and discrimination.

We have defended a social services agency sued for allegedly violating the constitutional rights of a grandmother who sought to be a foster mother for her grandchild.

We successfully defended a major hotel chain against a claim that it and its employees violated the civil rights of a hotel visitor by accusing her of being a prostitute based on her race. Baptiste v. The W Hotel, 2005 WL 1020779 (S.D.N.Y.)

We are defending a major New York hospital and medical school and one of its department chairs against fraud and breach of contract claims asserted by a former employee, who alleges that he had been wrongfully deprived of the fruits of many years of research and research grant development.

We obtained a dismissal of a civil rights claim brought against a New York City hospital and several of its staff physicians and EMT personnel, in which it was alleged that the plaintiff was involuntarily confined against her will based on an incorrect diagnosis that she was a threat to harm herself. Doe v. Harrison, 254 F. Supp. 2d 338 (S.D.N.Y. 2003)

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Employment Practices Litigation

Simpson v. Wyandanch Union Free School District (E.D.N.Y. 2006). Plaintiff alleged that her employer, a Long Island school district, discriminated against her based on sex in various respects and then retaliated against her when she complained, including terminating her employment. We moved for summary judgment dismissing all of her claims. The Court dismissed the retaliation claim and most aspects of the discrimination claim, leaving to be tried only two claims that involve a modest amount of potential damages.

Dass v. National Retail Transportation, Inc. (New Jersey Superior Court Appellate Division 2005). Plaintiff claimed that he was terminated from his long time position with our client because he had complained about various health and safety conditions, which he contended violated the New Jersey whistleblower law (the Conscientious Employees Protection Act). The Superior Court granted our motion for summary judgment, and the Appellate Division affirmed. The Court agreed with our showing that, because the plaintiff had been terminated immediately after having been grossly insubordinate in communicating with his supervisor, there was no causal connection between the alleged earlier protected activity (complaining about unpaid overtime) and the employer's decision to terminate.

Ambrosino v. World Logistics, Inc. (New Jersey Superior Court Union County 2005).  Plaintiffs, who are sisters, claimed that they were subjected to a hostile work environment on the basis of sex due to yelling and cursing by their male supervisors.  At a May 2005 jury trial, the jury found that one of the sisters had not proven her case, while the other sister was awarded a relatively modest amount far below the inflexible settlement demands made by the plaintiffs' attorney. No punitive damages were awarded. Earlier, the Court had granted our motion to dismiss the retaliation claim of one of the plaintiffs and both plaintiffs' negligence and intentional infliction of emotional distress claims.

Martin v. SCI Management LP, 296 F. Supp.2d 462 (S.D.N.Y. 2003).  We successfully moved to dismiss plaintiff's action brought under Title VII, the FMLA and the FLSA on the grounds that the dispute was subject to mandatory arbitration pursuant to an arbitration provision signed by the plaintiff upon hiring. The Court rejected plaintiff's arguments that the costs of the arbitration would be prohibitive, that she would not be entitled to adequate discovery in arbitration and that she would be precluded from recovering punitive damages in arbitration.

Weiss v. Travex Corp., 2000 WL 1543875 (S.D.N.Y. 2002). We successfully moved to dismiss plaintiff's Title VII action on the grounds that the dispute was subject to mandatory arbitration pursuant to the plaintiff's employment contract, which required arbitration of all disputes pertaining to his employment. The Court held that the plaintiff's claim that he was fraudulently induced to enter into the agreement should be decided by the arbitrator.

Tam v. ST&R Enterprises Inc. (New York Supreme Court Kings County 2004). Plaintiffs sued under the New York City Human Rights Law, alleging that they were subjected to hostile environment based on race, national origin, sex and perceived sexual orientation. We successfully moved for dismissal of their claim for intentional infliction of emotional distress on the grounds that the City Human Rights Law preempts the claim.

Morales v. Robert Half Management et al. (New York Supreme Court Bronx County 2004).  Plaintiff asserted a claim of hostile environment based on sex and retaliation. We successfully moved to dismiss plaintiff's claim under the New York City Human Rights Law on the grounds that the allegedly actionable conduct did not occur within the City of New York as is required for claims under that ordinance.

Villalobos v. Apple Core Hotels, Inc. (New York Supreme Court New York County 2003).   We successfully moved to dismiss the constructive discharge claim in a state court complaint alleging national origin discrimination by a Hispanic chef. The Court granted the motion on the grounds that plaintiff had not alleged conditions sufficiently severe to support the cause of action. This was a significant victory since we were able to eliminate the plaintiff's only claim that would have enabled him to recover lost wages. Based on this result we were able to settle the claim for a modest amount.

Doe v. Harrison, 254 F. Supp.2d 338 (S.D.N.Y. 2003).  We represented a New York City hospital and some of its physicians and paramedics in this action in which plaintiff alleged that she had been involuntarily committed to the hospital based on an improper determination that she was a danger to herself due to a psychological condition. Plaintiff asserted a federal civil rights claim under 42 U.S.C. § 1983. Under that statute, only "state actors." can be held liable. Plaintiff argued that the hospital and its agents were state actors based on the interrelationship between the hospital and the City of New York in coordinating involuntary commitments. The federal court dismissed the action, finding that the defendants were not state actors.

Davy v. I.J. Morris (E.D.N.Y. 2003).  We represented the owners of a funeral home that allegedly discriminated against a customer on the basis of race. Plaintiff's federal court civil rights action was settled on favorable terms in a private mediation in order to minimize litigation expense. Plaintiff then reneged on the settlement. We moved to enforce the settlement. The court agreed that a hearing was required to determine whether plaintiff was bound by the settlement. After the hearing, the Court held that the settlement was binding on the plaintiff.

Baptiste v. The W Hotel, 2005 WL 1020779 (S.D.N.Y. 2005). Our client, a New York City hotel, was sued by a woman who asserted a federal civil rights claim based on allegations that the hotel security staff stereotyped her as a prostitute based on her race and then assaulted her. The Court granted our pre-answer motion to dismiss, holding that plaintiff had not stated a claim under the civil rights laws.

Bothe v. Vytra Health Plans Long Island, 13 A.D.3d 568, 786 N.Y.S.2d 324 (New York Supreme Court Appellate Division 2004). Plaintiff alleged that the defendant HMO was liable for medical malpractice because it declined to pay for her to have orthopedic surgery with an out-of-network surgeon, and the in-network surgeon allegedly was negligent in performing the surgery. The Supreme Court granted our motion for summary judgment on the grounds that the federal ERISA statute preempts all state law claims against HMOs that provide coverage through employer plans. On December 27, 2004, the Appellate Division, Second Department affirmed the dismissal of all claims against our client, agreeing that ERISA preempted the plaintiff's claims.

Young v. Cigna Corp., 1998 WL 895766 (S.D.N.Y. 1998).  Plaintiff was an attorney formerly employed by an insurance carrier. He asserted a common law claim for severance pay. We moved to dismiss on the grounds that the claim was preempted by ERISA. The Court granted the motion. The plaintiff then served an amended complaint purportedly stating an ERISA claim. That claim was then dismissed on motion because plaintiff had not properly pleaded an ERISA claim.

Burbano v. Signature Cleaning Services, Inc. (New York Supreme Court Queens County 2002).  Plaintiff alleged that he was slandered when the president of his employer excoriated him in front of other employees concerning his having diverted business opportunities. We moved for summary judgment on the grounds that the allegedly defamatory statements were matters of opinion and also privileged based on the public policy encouraging candid discussions in the workplace between employers and employees concerning matters bearing on evaluations of employee performance. The motion was granted and the case was dismissed.  We also obtained a no probable cause finding from the New York State Division of Human Rights with respect to the same former employee's claim that he had been discharged for complaining about discrimination directed towards female employees.

La Manna v. Pizza Hut, Inc. (New Jersey Superior Court Essex County 2003). Plaintiff, a former employee of a Pizza Hut restaurant owned and operated by a franchisee, sued the franchisor for violation of the New Jersey discrimination and whistle blower statutes. Pizza Hut. We successfully moved to dismiss on the grounds that process had not been properly served on the franchisor by serving a representative of the franchisee; the motion also demonstrated that this franchisor was not liable for alleged employment discrimination by a franchisee that employed the plaintiff.

Zappier v. Don's Thru-Way Diner, Inc. (New York State Unemployment Appeal Board 2003). We represented the respondent in this unemployment case, and were able to obtain a dismissal on the grounds that claimant, who simply walked off the job because she claimed to be unhappy with working conditions, was not eligible for unemployment because eligibility requires a determination that the employee was involuntarily separated from his or her employment.

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Automobile Liability Litigation

James Domini, senior associate, obtained summary judgment on behalf of our clients in an action, Kasten v. Phoenix House, Inc., et al (New York Supreme Court, Suffolk County 2006), wherein it was alleged that the plaintiff sustained serious injuries pursuant to Insurance Law section 5102 (d) as a result of an automobile accident. The plaintiff alleged cervical and lumbar disc bulges and protrusions at multiple levels with nerve root involvement as well as a significant lost earnings component. The Supreme Court granted our motion for summary judgment on the grounds that plaintiff's treating physicians' affirmations and chiropractor's affidavit were deficient since they were based on examinations of the plaintiff which took place shortly after the accident, and were of no probative value with respect to the question of the permanency of plaintiff's injuries.

In June, 2006, Principal/litigator Richard M. Sands won a defense verdict and the defendant driver was found not to be negligent where the defendant's commercial van struck a stopped car in which plaintiff was a passenger in Sullivan v. Airborne Freight Corp.(New York Supreme Court, Bronx County). Plaintiff, who was wheelchair-bound, made numerous claims of permanent disability, including brain damage, RSD (Reflex Sympathetic Dystrophy) and PTSD (Post Traumatic Stress Disorder). The jury in the month-long trial heard the defense psychiatric expert testify that plaintiff suffered from Somatoform Pain Disorder, a psychiatric malady that mimics physical pain, and which was unrelated to the accident. Although the defendant's commercial vehicle struck the stopped car in the rear, the jury heard the defense accident reconstruction expert testify that the cause of the accident was not careless driving but rather the presence of a slippery puddle of oil in the roadway, which prevented the defendant driver from stopping his van in time to prevent the accident.

James Domini, senior associate, successfully obtained an affirmance of a grant of summary judgment dismissing plaintiff's action wherein it was alleged that he sustained serious injuries pursuant to Insurance Law section 5102 (d) as a result of an automobile accident. The plaintiff alleged significant, permanent and disabling injuries, including a tear of the left medial meniscus, lumbar disc herniations at multiple levels and temporomandibular joint dysfunction. The Supreme Court granted our motion for summary judgment on the grounds that plaintiff's treating physician's affirmation was deficient since it did not cite the specific tests utilized in determining range of motion restrictions, relied upon medical reports not attached with said affirmation and proffered an ambiguous statement as to causation. The Appellate Division, Second Department, unanimously affirmed the dismissal in Fusco v. Barnwell House of Tires, Inc., 16 A.D. 3d 620, 792 N.Y.S. 2d 524 (2nd Dept. 2005). Plaintiff's motion for leave to appeal to the Court of Appeals was denied.

Thomas Vaughan obtained a defense verdict in the United States District Court, Northern District of New York (Albany) in Amanda Pulver v. Henkels & McCoy and Kevin McMorrow. The case involved a truck - car collision where plaintiff claimed significant, permanent and disabling injuries , requiring shoulder surgery and continuing invasive nerve root injections to his cervical spine. The police report and one passenger in defendant's 36,000 pound truck indicated that the truck driver was responsible, but the driver and a second passenger asserted that the truck was cut off by Plaintiff's car. Jury deliberation lasted one hour.

Kevin O'Keefe and Kerry J. Kaltenbach obtained summary judgment on the issue of liability in a Bronx County case in which the plaintiff sustained serious injuries, including being in a comatose state for several weeks. The automobile in which he was a passenger was involved in a major collision with our client's tractor-trailer. The legal issue was whether the "sudden stop" of our client's vehicle, as testified to by a non-party witness and taken as fact in the summary judgment analysis, presented a "non-negligent explanation". The Court ruled that even if our client did bring his tractor-trailer to a sudden stop, he still has no responsibility for the collision as a matter of law.

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Aviation and National Security Law

James P. Connors currently serves on the defendants' executive committee for the consolidated September 11th Air Crash litigation, 21MC97, which is pending in the United States District Court, Southern District of New York. This is the single largest casualty case pending in the United States today.

Mr. Connors has handled some of the most noteworthy cases arising in this field including the loss of the aircraft piloted by John F. Kennedy, Jr. resulting in his death and that of his wife and sister-in-law off the coast of Martha's Vineyard.

Mr. Connors has represented the largest manufacturer of aviation engines and has defended the largest aviation fastener manufacturer in teh world in litigation arising out of the loss of a commercial helicopter and its passengers.

Mr. Connors is also involved in cutting edge litigation relative to insurance ramifications surrounding the loss of various communication satellites recently placed in orbit.

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Insurance Law

The firm recently effected a change in the California Department of Insurance's longstanding policy regarding independent insurance adjusters' residency requirements. The California Department of Insurance (“DOI”) has long taken the position that only a California resident may qualify for an independent adjuster license under Insurance Code § 14000 et seq. Recently, on behalf of a national Third Party Administrator, the firm challenged that position requesting that the DOI provide an interpretive opinion of its position based upon relevant statutes and case law.

The DOI responded to the firm in a letter dated February 23, 2005, stating that effective immediately, the DOI will allow non-resident independent adjusters to adjust claims in California if the adjuster is under the active direction, control, charge and management of a qualified manager. Further, the “qualified manager” need not be a resident of California. The DOI’s license application instructions will be amended to reflect this.

A qualified manager must still comply with Insurance Code § 14029(b) * but no longer will have to be a California resident. Consequently, a person who holds a qualified manager’s license but is not currently a California resident may operate as a qualified manager for non-California adjuster licensees forthwith. However, it is still a prerequisite to licensure that the business conducted by the qualified manager have a business address in California.

The foregoing changes are effective immediately.

* In order to qualify as a “qualified Manager,” the applicant must demonstrate his/her qualifications by a written or oral examination or a combination of both, if required by the Commissioner, and must satisfy § 14025 and 14028.

Richard Imbrogno recently obtained a declaratory judgment on an insurance coverage case pending in Supreme Court, Westchester County. The underlying case involved significant burn injuries. As a result of the declaratory judgment, co-defendant's insurance carrier assumed the client's defense and indemnity.

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General Liability

Steven H. Kaplan and Neil E. Higgins obtained summary judgment dismissing the complaint against a commercial tenant in a trip-and-fall sidewalk defect action in Zym v. The City of New York (New York Supreme Court, New York County 2006). The court held that the tenant was responsible for the work of its sidewalk contrator, who had torn out an old sidewalk and installed a new one in front of its business premises, but that the contractor had not created the condition that allegedly caused plaintiff decedent to fall. That condition was a height differential between the new sidewalk installed by the contractor and the adjacent sidewalk next door. In light of undisputed evidence that the height differential existed even before the contractor tore out the old sidewalk and installed a new one, such that the contractor had merely replicated pre-existing conditions, the court found that the contractor had not created the punitive defect, and that the commericial tenant was not liable to the plaintiff.

Charles O'Bryan successfully obtained an affirmance of a grant of summary judgment in Brown-v-GMRI, Inc., et al. The case involved a wrongful death proceeding brought by the Estate of Mr. Brown against Red Lobster and Community Protective Services, a security company. The decedent was fatally wounded by another patron following a brief verbal exchange. The Estate claimed that the restaurant failed to provide adequate security. We successfully moved for summary judgment arguing that the spontaneous assault of one patron by another was unforeseeable and therefore not actionable. The Appellate Division agreed with our position and upheld the decision and the Court of Appeals refused to accept any further appeal. The case has been placed in the official reports at 6 A.D. 3d 640, 775 N.Y.S. 2d 184 (2d Dept. 2004) as well as being cited in the New York Pattern Jury Instructions –Civil 2:90, Possessor’s Liability For Condition or Use of Premises-- Standard of Care (2006 Ed.), New York Law of Torts, s 12:38, various legal newspaper columns, and other cases.

Scott E. Miller, principal and co-chair of our construction practice group, and senior associate Mark Wellman recently obtained a decision that dismissed plaintiff’s action based upon plaintiff’s spoliation of evidence in Gerard Owners Corp. and St. Paul Insurance Company a/s/o Gerard Owners Corp. v. Marlande Heating Corp./Marlande Heating Corp. v. Phoenix Energy Management Inc. and Abilene, Inc., No 222/03. The decision by Hon. Janice A. Taylor, of Supreme Court, Queens County, dismissed a $450,000 property damage subrogation action by an insurer for damages allegedly caused by our client during the course of their installation of a 750-pound King Coil Valve into the basement of the premises of the carrier’s insured. It was alleged that our client’s employees used a hoist chain on a gas pipe near the entrance to the basement to more easily move the heavy machine down the stairs. As a result, the pipe leaked and resulted in the damages sought to be recovered in subrogation. During the course of the litigation a critical section of the pipe disappeared, precluding our client from inspecting the pipe or otherwise challenging the contentions of the expert retained by the subrogating insurer – who did inspect the pipe prior to its disappearance. This decision highlights the importance of preserving critical physical evidence and the potential drastic consequences that can ensue if not preserved.

Ann Marie Cherry v. Daytop Village, Inc. (New York Supreme Court – Bronx County 2006). James Domini, senior associate, obtained summary judgment on behalf of defendant Daytop Village in an action involving a trip and fall at Daytop’s facility in Rhinebeck, N.Y. The plaintiff alleged a tear of the posterior talofibular ligament which necessitated ligament reconstructive surgery. The Court held that the plaintiff failed to raise a triable issue of fact as to causation since she did not see a roadway crack prior to her fall, and could not specify which crack, if any, caused her to fall.

Partner, Gail McCallion obtained summary judgment dismissing a claim against our client in Santimauro v. Starwood Hotels & Resorts Worldwide, Inc. (Supreme Court Richmond County 2005). Plaintiff claimed that the defendant hotel was negligent in failing to place a bathmat or towel adjacent to the shower, and blamed the absence of same for his slip and fall on the wet floor when he left the shower running with the shower door open to retrieve a towel. The Court held that the accident was the result of the plaintiff’s own negligence, and that the hotel had no duty to supply the bath mat in a particular location.

Steven Kaplan, Gail McCallion, and Neil Higgins successfully obtained a dismissal upon a motion for summary judgment in a significant premises liability case. Alessio v. City of New York, New York Mets and Egg Electric. Plaintiff has filed a notice of appeal.

Kerry J. Kaltenbach obtained summary judgment on behalf of New York University in a snow and ice related premises liability case. Kallenbach v. City of New York and NYU (2003).

The firm recently obtained summary judgment on behalf of all defendants in an action arising from a slip and fall by the employee of a tenant of airport premises owned by the Port Authority of New York and New Jersey. The Court dismissed the claims asserted against the employer's parent company on the grounds that plaintiff had not shown a basis to pierce the corporate veil, and dismissed the claims against the Port Authority on the grounds that there was no basis to hold liable an owner out of possession which had delegated all responsibility for the premises to its tenant. The former holding was appealed by plaintiff, and affirmed on appeal by the Appellate Division, Second Department. Potash v. Port Authority of New York and New Jersey, 279 A.D.2d 562, 719 N.Y.S.2d 290 (2d Dep't 2001).

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Appellate Practice

In Castillo v. 711 Group, Inc., 41A.D.3d 77, 833 N.Y.S. (2d 642, 2007), Scott E. Miller and Mark D. Wellman successfully obtained a unanimous affirmance by the Court of Appeals, granting summary judgment on the issue of whether plaintiff suffered a "grave injury" under New York's Workers' Compensation Law section 11. In affirming the decision of the Appellate Division, Second Department, the Court held that third-party plaintiff established that plaintiff suffered the "loss of an index finger" within the meaning of New York's Workers' Compensation Law section 11 and, thus, could maintain its third-party action against plaintiff's employer. The Court found, as argued by Mr. Miller and Mr. Wellman, that the loss of both interphalangeal joints, leaving a painful amputation stump, constituted the "loss of an index finger".

In Aparicio v. Acme American Repair, _A.D.3d_(1st Dep't Oct. 19, 2006), Steven H. Kaplan and Neil E. Higgins obtained the reversal of a lower court order denying summary judgment to the manufacturer of a tilt kettle. The Appellate Division granted our client summary judgment, holding that plaintiffs (and co-defendant) had failed to raise a triable question of fact on their design defect cause of action. It noted that after nine years of problem-free use, the kettle tipped unexpectedly, spilling its boiling contents, because it had not been lubricated in several years. It held that (a) a manufacturer does not have a duty to design accident-proof products incapable of ever wearing out; (b) plaintiffs' expert's affidavit was devoid of foundational facts; and (c) at most, plaintiffs' expert opined that the kettle could have been designed to be "safer," whereas plaintiff must prove that the kettle's design rendered it "not reasonably safe." It also rejected plaintiffs' argument that the manufacturer had a duty to warn of the consequences of not maintaining the kettle. Plaintiffs had cross-appealed from the denial of their cross-motion to amend their complaint to assert a punitive damages claim against the manufacturer, and their appeal was denied by the Appellate Division on multiple grounds.

Charles O'Bryan and Steven Kaplan won an appeal from a decision granting summary judgment on a wrongful eviction claim. In Quiles-v-Term Equities, 22 A.D. 3d 417, 802 N.Y.S. 2d 679 (1st Dept., 2005), a group of rent-controlled and rent-stabilized tenants brought suit against a landlord alleging property damage and personal injury, as well as wrongful eviction, following a fire in the apartment building (NB.: After vigorous discovery and aggressive motion practice, the negligence claims were discontinued with prejudice and the property damage claims were settled for a nominal fee leaving only the wrongful eviction claim.). Following the fire the Department of Housing and Community Renewal issued an emergency vacate order and instructed the tenants to pay the sum of $1.00 to the assureds. The assureds retained the services of an engineer who stated that the building was destroyed. The assureds returned the monies to the tenants and constructed a new building on the premises. The plaintiffs moved for summary judgment on the wrongful eviction claim. The assured argued that the building was constructively and actually demolished and, therefore, the former tenants had no right to reoccupy the new—and reconfigured—building. Justice Lehner granted the motion. On appeal, the Appellate Division held that a material issue of fact existed as to whether a fire in the rent-controlled building effectively demolished the building. Steven Kaplan argued the appeal from our co-authored brief. This case has also been published in the official reports, and has been cited and analyzed in articles published in the January 14, 2006 edition of the N.Y. Law Journal (@page 5, col. 2) and 33 HDRCURDEV 39.

The firm successfully obtained an affirmance of a grant of summary judgment in Dass v. National Retail Transportation, Inc. (New Jersey Superior Court Appellate Division 2005). Plaintiff claimed that he was terminated from his long time position with our client because he had complained about various health and safety conditions, which he contended violated the New Jersey whistleblower law (the Conscientious Employees Protection Act). The Superior Court granted our motion for summary judgment, and the Appellate Division affirmed. The Court agreed with our showing that, because the plaintiff had been terminated immediately after having been grossly insubordinate in communicating with his supervisor, there was no causal connection between the alleged earlier protected activity (complaining about unpaid overtime) and the employer's decision to terminate.

The firm successfully obtained an affirmance of a grant of summary judgment dismissing all claims against our client, agreeing that ERISA preempted the plaintiff's claims. Plaintiff alleged that the defendant HMO was liable for medical malpractice because it declined to pay for her to have orthopedic surgery with an out-of-network surgeon, and the in-network surgeon allegedly was negligent in performing the surgery. The Supreme Court granted our motion for summary judgment on the grounds that the federal ERISA statute preempts all state law claims against HMOs that provide coverage through employer plans. On December 27, 2004, the Appellate Division, Second Department affirmed the dismissal. Bothe v. Vytra Health Plans Long Island, 13 A.D.2d 586, 786 N.Y.S. 2d 324 (2d Dep't 2004).

Steven Kaplan successfully obtained an affirmance of a grant of summary judgment dismissing a third-party complaint against a manufacturer of a fabric-cutting machine. It was demonstrated that the third-party plaintiff had modified a component of the client machine which destroyed certain safety features, thus contributing to the accident. Masiello v. Efficiency Devices, Inc., 6 A.D.2d 672, 776 N.Y.S.2d. 578 (2d Dep't 2004).

In Potash v. Port Authority, 278 A.D.2d 562, 719 N.Y.S.2d 290 (2d Dep't 2001), the firm won an appeal from a decision granting summary judgment dismissing the plaintiff's claims against our client arising from his workplace accident at premises leased by his employer. Plaintiff sued the parent company of his employer, which allegedly was responsible for having created a hazardous condition but which could not be sued due to the Workers' Compensation bar. The Court rejected plaintiff's attempt to pierce the corporate veil between the parent and subsidiary to hold the former liable for the latter's alleged negligence. In the lower court, we had also obtained summary judgment on behalf of the lessor on the grounds that it had relinquished all control to the tenant.  That dismissal was not appealed.

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Medical Malpractice

Kevin Ryan recently won summary judgment in Ifraimov v. North Shore University Hospital. This was an action in which an infant's mother sought to recover for the death of her 8 day old child while a patient in the NICU. The child was born prematurely due to the mother's oligohydramnios. The infant was admitted to the NICU in respiratory distress but stabilized in a few days. At 7 days of life the infant's condition changed and necrotizing interocolitis (NEC) was suspected. Exploratory surgery the next day confirmed that the entire bowel was necrotic and that nothing could be done.

The plaintiff's expert response indicated an OB/GYM would testify that the mother's group beta strep infection was not timely diagnosed and treated with antibiotics prenataly and that this was the source of the NEC. We moved for summary judgment pointing out that the co-defendant OB/GYN was responsible for prenatal care and in any event had prescribed antibiotics. We submitted an affidavit from an expert neonatologist establishing that the NEC was a result of a congenital heart anomoly and the NICU treatment was in all respects appropriate. The co-defendant cross-moved for summary judgment and the plaintiff did not oppose it. Instead, the plaintiff opposed our motion for summary judgment with an affidavit from a pathologist claiming that surgery was not timely performed and that had it been, the infant's chance of survival would have significantly improved. In reply, we pointed out that the plaintiff's expert had not established her experience in the field of neonatology or pediatric surgery and submitted an affidavit from the pediatric surgeon who performed the procedure. The court agreed with our position and granted summary judgment. The plaintiff's settlement demand during the pendency of the motions was $350,000.

This is an important decision because the court chose to follow decisional law which holds that although any MD is qualified to offer expert opinions in New York, it must be shown that the expert is possessed "...of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable." This is especially true when an expert offers an opinion outside their area of specialization.

Charles Gura won a defense verdict during trial in October 2004 in the Supreme Court, Nassau County. Plaintiff had sued our client, a midwife, for failure to diagnose an ectopic pregnancy.

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Products Liability Litigation

James P. Connors assisted by Anthony Hom and Hun Soo Lee recently put together an extensive seminar on the impact of U.S. Product Liability law as it affects foreign manufacturing.

Mr. Connors presented this seminar in conjunction with a major international insurance carrier to a collection of manufacturing company representives in Seoul, South Korea.

Mr. Connors has been invited to present a similar seminar in China in the near future.

Representative cases include the following:

Mitchell v. Beth Israel Medical Center , Supreme Court of the State of New York.  The firm defended this case in which a newborn was horrifically burned as a result of the allegedly negligent manufacture of a heating apparatus.  The case was settled at trial on very favorable terms for our client, the manufacturer.

St. Paul Insurance Company and Liberty Mutual Insurance Company v. Catalina Lighting, Inc., United States District Court, Southern District of New York.  We represented a lighting manufacturer in several cases, including two in federal court, arising from a fire allegedly caused by the client's defective clip lamp.  We were successful in achieving settlements on favorable terms without incurring extensive litigation costs.

Anderson v. Bungee International, Inc., United States District Court, Southern District of New York.  We represented a bungee cord manufacturer in federal court litigation, in which we were successful in obtaining a dismissal on motion of plaintiff's express warranty and failure to warn claims.

Ulate v. Stone Boss Industries, Supreme Court of the State of New York; Laurore v. Stihl Int'l, United States District Court, Eastern District of New York; Mangano v. Norton Abrasives, Supreme Court of the State of New York, Kings County; Diaz v. Stone Boss Industries, Supreme Court of the State of New York, Queens County; Chang v. Home Depot USA, Inc., Supreme Court of the State of New York, Queens County.   We have handled numerous cases for a manufacturer of grinding wheels for industrial and home uses.  One such matter, in which the plaintiff's face was obliterated as a result of a grinding wheel explosion, was dismissed at trial.  Others have been settled on very favorable terms.  Recently, plaintiff voluntarily dismissed one such case with prejudice rather than oppose our summary judgment motion.

In Re: Helicopter Crash, et. al. v. Eurocopter, et. al., United States District Court, Southern District of New York.  We defended an action involving one of the largest aviation helicopter losses on record involving the death of an officer of a Fortune 500 company and serious injury to another officer.  The case was settled due to the huge damages exposure.

In Re: Letter Rogatory Issued by Second Part of the III Civil Regional Court of Jabaquara/Saude, Sao Paulo, Brazil, United States District Court, Eastern District of New York. We handled a case for the manufacturer of a reverse thruster for an airplane which arose from an accident in which nearly 100 passengers and crew died due to alleged malfunction of the client's product.  The cases were resolved based on an extremely favorable apportionment to our client.

MDL 727/San Juan DuPont Hotel Fire Litigation.  We handled a case involving the deaths of more than 100 persons in a Puerto Rico hotel fire in which we represented AIG as a direct defendant defending allegations of faulty inspections.  All of the claims were dismissed at trial.

Ribachonek v. Rusk Institute.  We represented a leading hospital with respect to allegations that defective hip replacement devices were utilized.   We obtained a defense verdict on behalf of the hospital.

Rodriguez v. Filomio Truck Sales, 10 A.D.3d 507, 781 N.Y.S.2d 511 (1st Dep't 2004). We won a products suit against Airborne Freight Corporation on appeal. Plaintiffs claimed that a retread tire on a van was defective, and caused an accident. We appealed from a denial of our motion for summary judgment in Bronx County - the decision was reversed on factual grounds; the Court held that the tire at issue could not have been on the vehicle at the time of the accident.

Francine Dembitzer v. Broadwall Management, Civil Court of the City of New York, New York County. We won summary judgment for our client the Glidden Corporation in a high exposure product liability matter. The case involved allegations that the plaintiff sustained personal injuries from her exposure to chemical fumes in her apartment resulting from the decomposition of the Glidden product Liquid Nails Adhesive which was used to affix filters to her radiators.


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Mancuso v. Rubin (New York Supreme Court Westchester County 2006).  Plaintiff purchased a home only to find that it was infested with termites which required her to pay for extensive repair work. She sued our client, professional engineers, which had for $200 rendered a limited termite inspecticn prior to her purchase, alleging gross negligence, deceptive trade practices and other claims. The firm made a motion to dismiss on behalf of the client, which was granted. The court agreed that several of plaintiff's claims were insufficiently pleaded, while the remainder were controlled by the parties' contract which limited any liability arising from the contract to the $200 fee charged.