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O'CONNOR, O'CONNOR, HINTZ & DEVENEY, LLP ATTORNEY'S AT LAW

ONE HUNTINGTON QUADRANGLE
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MELVILLE, NY 11747
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OOH&D Law News

Labor Law

Premises Liability

Municipal and School District Liability

Motor Vehicle Litigation

Products Liability

Medical, Opthalmic, Pharmaceutical Malpractice

General Negligence

No Fault

LABOR LAW

Cuomo v. 53rd & 2nd Associates, LLC et al.
Appeared for: Sage Electrical Contracting, third-party defendant

OOH&D successfully defeated the defendants' motions for summary judgment on their claims for contractual indemnity because they could not meet their burden in demonstrating freedom from active negligence and were therefore not entitled to a conditional judgment of indemnity.

Rodriguez v. Trades Construction Services Corp. et al.
Appeared for: Trades Construction Services Corp.

OOH&D successfully obtained summary judgment on behalf of the general contractor, where plaintiff alleged he was partially buried in a trench when it collapsed while he was working within it. The court dismissed plaintiff's Labor Law 240(1), 241(6) and 200 claims and also dismissed the co-defendants' cross-claims for contractual and common law indemnity. Note that this decision is currently on appeal.

Hernandez v. Ten Ten Corp. et al.
Appeared for: Prudential Securities Inc.

Plaintiffs were awarded in excess of $3.0M in damages as the result of a construction accident, where plaintiff claimed a tibia/fibula fracture with ORIF and subsequent development of reflex sympathetic dystrophy and an inability to walk without use of bilateral crutches. Plaintiff, 43 years of age, never returned to work. We prevailed at trial on behalf of the defendant tenant on our contractual cross claim against the negligent contractor and were indemnified in full with respect to plaintiff's recovery, which was upheld on appeal to the First Judicial Department, and which rendered the matter to the trial court. A hearing has yet to be scheduled with respect to the award of attorneys fees rendered to our client against the contractor.

Kerrigan v. TDX Construction Corp. et al.
Appeared for: TDX Construction Corp. and the Trustees of Columbia University

This wrongful death case involves a decedent who was directing the removal of a manlift from the roof of a building being constructed. The manlift drifted laterally and pinned decedent against a parapet wall. He died several hours later. On summary judgment the Court found decedent was the “sole proximate cause” of his injury and dismissed the complaint. An appeal is pending.

Rocha v. 909 Third Company, L.P. et al.
Appeared for: Defendants and third-party defendants

Plaintiff, aged 37, was stripping paint when the Peel Away product he was using to do so splashed up into his face. Plaintiff alleged that, as a result, he lost sight in one eye and also suffered facial scarring. Plaintiff alleged a violation of Labor Law 241(6) based upon the claimed failure, on the part of his employer, to furnish him with safety glasses.

This matter proceeded to trial in the Supreme Court, New York County before Justice Joan Madden. At that time the defendants averred that safety glasses had been furnished to the plaintiff, that he had been instructed on prior occasions to wear the glasses when working with peel away, and that plaintiff had also been given OSHA training. In addition, defendants also introduced medical testimony that challenged plaintiff's claim that he had entirely lost sight in one eye.

The verdict entered by the jury attributed 71% of the liability to the plaintiff and 29% to the defendants.

Ramcharan v. Beach 20th Realty, LLC
Appeared for: Unlimited Export Inc.

Plaintiffs' decedent, age 21, was involved in a fatal accident that occurred at a warehouse owned by defendant, Beach 20th, and leased to third-party defendant, Unlimited. Plaintiff, employed by Excel, got onto the forks of a forklift owned by Unlimited. In what appears to have been meant as a practical joke, a co-worker raised the forks of the forklift to approximately 20 feet from the ground, and proceeded to drive around the warehouse. Decedent was pinned between the wall and the back rack of the forklift. Plaintiff alleged violations of Labor Law §200, 240, and 241(6), as well as multiple Industrial Code Regulations.

The defendant and third-party defendants all moved to dismiss the plaintiffs' Complaint. Plaintiffs withdrew their claims under Labor Law §200 and §240(1), and conceded that the sole industrial code applicable was §23-9.8(k), which prohibits standing or riding on the forks of a moving fork lift truck. The motion and cross-motions to dismiss the Complaint were granted and plaintiff appealed. The Second Department held that the trial court had properly granted summary judgment dismissing the cause of action alleging that Beach had violated Labor Law §241(6) as §23-9.8(k) of the Industrial Code lacks the specificity necessary to support a cause of action.

In addition, the Second Department granted that aspect of OOH&D's appeal which sought to reverse the trial court's finding that Beach was entitled to indemnification from Unlimited. The Second Department found that contrary to the trial court's determination, Beach had failed to demonstrate its prima facie entitlement to judgment as a matter of law on its third-party contractual indemnification cause of action against Unlimited, and Unlimited had demonstrated its prima facie entitlement to judgment as a matter of law dismissing that cause of action. Thus, the Order was modified to deny summary judgment to Beach and grant summary judgment to Unlimited on the third-party claim for indemnity.

La Rosa v. Internap Network Servs. Corp.
Appeared for: defendant-respondent-appellant J. Calnan & Associates, Inc.

Plaintiff was injured while lifting a box of electrical equipment from a loading dock and alleged Labor Law causes of action. There were two construction projects underway at the premises at the time of his accident. Defendant J. Calnan had contracted to perform construction management services on one of the projects. On defendants' motions for summary judgment, the trial court dismissed plaintiff's Labor Law §§ 240(1) and 241(6) causes of action, but denied summary judgment to each of the defendants on plaintiff's Labor Law §200 cause of action.

The defendants appealed the denial of their respective motions under Labor Law §200 and plaintiff appealed that portion of the order that dismissed his Labor Law §§ 240(1) and 241(6) causes of action. The Appellate Division upheld the dismissal of the §240(1) and §241(6) causes of action and also held that each defendant was entitled to judgment as a matter of law dismissing the causes of action under Labor Law §200 and common law negligence because plaintiff's injuries arose from the means and methods of his work. The Appellate Division noted that plaintiff's acts were under the sole control of the foreman of the subcontractor who employed him and none of the defendants exercised any control over the means and method by which plaintiff processed the delivery of the electrical equipment. In finding in favor of the defendants, and dismissing the Complaint, the Court refused to consider an affidavit submitted by plaintiff several months after his deposition that appeared to be tailored to raise a triable issue of fact and designed to avoid the consequences of plaintiff's earlier testimony.

O'Connor v. Lombardo
Appeared for: Oak Plaza, LLC

The plaintiff sustained severe injuries to the right leg, most notably including a comminuted calcaneous fracture and traumatic arthritis, following an alleged fall from a ladder at a construction project. The defendant client was the owner of the project, and the co-defendant was an uninsured general contractor. We were able to effect an extraordinarily reasonable settlement ($60,000), which included a $5,000 contribution from the uninsured co-defendant. Evidence had been developed during discovery that plaintiff had given a different version of events to the emergency room physician, which plaintiff vehemently denied. We located and subpoenaed the retired physician who had made the entry in the chart and also developed contradictions to plaintiff's account during the depositions of all parties, thus leading to the favorable result achieved.

Noble v. 260-261 Madison Avenue
Appeared for: All Defendants

Plaintiff, a laborer, sought to recover for personal injuries allegedly sustained when he fell from a 10-foot wooden A-frame ladder while doing light demolition work. While removing air ducts and rods from the ceiling, he held onto one of the rods that he was tasked with removing, and used his other hand to cut the wires that held an air duct in place. The rod he was using for support gave way, causing him to fall away from the ladder. Plaintiff was granted summary judgment on his Labor Law §240(1) cause of action. OOH&D appealed to the Appellate Division, First Department, which modified the decision to deny summary judgment to the plaintiff. The Court found that we had raised several issues of fact with regard to whether the 10-foot ladder constituted an adequate safety device for the work plaintiff was directed to perform, and whether plaintiff was the sole proximate cause of his accident, i.e. whether an adequate safety device was provided, but was misused by plaintiff. The Court noted the absence of any testimony that plaintiff was actually unable to support himself by holding onto the ladder that was in front of him. Moreover, the Court agreed with our position that while a Labor Law plaintiff may be granted summary judgment based on his own testimony with regard to how an accident happened, even in the absence of any witnesses, the motion should be denied where the defendants present evidence that raises an issue of fact as to whether the accident occurred in the manner alleged and whether the plaintiff was the sole proximate cause of that accident.

Dreher v. TDX Construction Corp. et al.
Appeared for: TDX Construction Corp.

Plaintiff was injured when a crate of windows resting on forks of a lull above the floor surface slid off and struck his knee. On motion by OOH&D, the Court dismissed plaintiff's Labor Law 240(1) claim, determined the insurer was not negligent and awarded our client contractual indemnity against a sub-contractor.

Wahab v. Agris & Brenner
Appeared for: All defendants

Plaintiff stepped onto a scaffold plank which fell, causing him to fall off the scaffold. Normally, a certain liability case under Labor Law 240(1), but one where OOH&D was able to defeat plaintiff's summary judgment motion. Our motion demonstrated, through a recreation of the accident using a dummy, that the harness plaintiff had available at the site and considered, but chose not to use, before climbing up on the scaffold, would have prevented him from landing on the sidewalk and sustaining injury, had he attached the harness' lanyard to the scaffold frame.

Gordon v. Barr& Barr
Appeared for: Barr& Barr, P.C.

In this Labor Law case plaintiff stepped on some piping on the floor of the area where materials were being brought through a window. As a result he alleged that he suffered multilevel herniated lumbar discs and/or an exacerbation of his pre-existing degenerative disc disease in his lumbar spine. OOH&D was able to achieve a favorable settlement, without any contribution from our client, and we were also able to procure recoupment of substantial litigation costs and attorney's fees.

Rodriguez v. Gilbane/TDX Joint Venture et al.
Appeared for: Gilbane/TDX, JV

OOHD obtained summary judgment dismissing of plaintiff's complaint on the basis that Gilbane/TDX as Construction Manager was not an “agent” of the owner for purposes of the Labor Law. The decision was affirmed unanimously by the Appellate Division, First Department. Plaintiff's subsequent motion to reargue this decision and for permission to appeal to the Court of Appeals was denied. A motion to appeal is pending in the Court of Appeals. OOHD also succeeded in procuring additional coverage from a prime contractor in a separate declaratory judgment action.

Lopez v. Coldwell Banker Meadow Realty, Inc. et al.

The plaintiff alleged severe and permanent injuries, including paraplegia, as the result of a fall from a roof on a jobsite. We moved for summary judgment dismissal of plaintiff's complaint before any depositions were taken, arguing that our client, a fence rental company, played no role in contributing to the conditions which formed the basis for plaintiff's complaint. We further argued we were not a potentially statutorily liable party under any Labor Law provision. We successfully argued against plaintiff's opposing papers, which set forth that our motion was premature and that additional discovery (i.e. deposition) was required, at a minimum, to determine whether our motion had merit. No appeal was taken by plaintiff from the summary judgment award to our client.

McDonald v. Colonial Steel et al.
Appeared for: Colonial Steel Corp.

Plaintiff was off loading steel angle irons from a flatbed truck when one of the beams fell off the truck and hit him in the head. Plaintiff suffered a traumatic brain injury, various facial fractures, was in a coma for some period of time, and also was alleged to have suffered multi-level herniations and erectile dysfunction as a result of the accident.

The matter was tried to verdict in the Supreme Court, Kings County before Hon. Mark I. Partnow. The jury found that plaintiff was 85% responsible for his injuries, and Colonial Steel only 15% liable. The jury awarded the plaintiff $900,000 and $150,000 to his wife, of which OOH&D's client was responsible for paying $163,000.

PREMISES LIABILITY

Caldwell v. Two Columbus Avenue Condominium et al.
Appeared for: Third-Party defendant Pauly Windows, Inc.

Plaintiff purchased a newly constructed penthouse apartment and claimed that she suffered significant water intrusion and a mold condition which went unaddressed for a period of years. Plaintiff alleged that she was constructively evicted as a result of these conditions. The matter was tried before Hon. Geoffrey Wright of the Supreme Court, New York County. At the close of evidence, OOH&D moved to dismiss plaintiff's claims and all cross-claims raised against our client and the court granted our motion. Thereafter, the jury rendered a verdict in plaintiff's favor against the remaining parties in the sum of $387,000.

Baffa v. New Plan of Hillside Village LLC.
Appeared for: defendant-respondent, National Construction Rentals, Inc.

In this personal injury/wrongful death action, plaintiff's decedent, then 84 years old, was allegedly caused to fall on the base stand of a temporary chain-link fence while walking in the parking lot of a shopping center owned by our client. The decedent died before the action was commenced and was never deposed. In affirming the decision of the trial court, the Appellate Division held that the defendants met their burden of establishing their prima facie entitlement to judgment as a matter of law by demonstrating that any determination as to how the accident occurred would be based on pure speculation. The Court found that plaintiff's opposition, which relied on hearsay testimony, was insufficient to defeat the motion as a matter of law.

Kotera v. City of New York
Appeared for: defendant-appellant, Drain Kleen Sewer Service, Inc.

Plaintiff was struck by a fire hose and/or slipped and fell in an effort to avoid a fire hose, while working as a maintenance supervisor at the premises known as Kent Village Housing Co. Our client had been called to the scene to assist in clearing a sewer blockage. Defendant, NYC Department of Environmental Protection ("DEP") was subsequently called for the same purpose when our client's efforts were unsuccessful. The accident happened when a DEP employee, who was using a fire hose that was connected to a fire hydrant to fill the jet flusher tank on the DEP truck, allowed the hose to slip out of his hands and/or the tank, causing the hose to spray water and move erratically in the direction of the plaintiff. Plaintiff alleged that our client's employee may have repeated a request by a DEP worker to open the fire hydrant before the accident occurred. We moved for summary judgment, arguing that our client did not owe a duty of care to the injured plaintiff, and that even if it owed such a duty, there was no evidence of any breach. The motion was denied. The Appellate Division subsequently reversed and dismissed all claims raised as against our client in their entirety based on the Espinal doctrine.

Atteritano v. SF&G Associates et al
Appeared for: SF&G Associates

OOH&D was successful in securing summary judgment, dismissing plaintiff's action in its entirety, in a trip and fall accident in which OOH&D represented the owner of commercial premises. Plaintiff claimed to have tripped and fallen over medical specimen boxes in the hallway of the subject premises. However, her testimony with respect to the reason as to why she fell was inconsistent and contradictory. The case was dismissed because the court agreed that plaintiff failed to meet her burden of proof in showing that the medical boxes were the proximate cause of her fall.

Fruccione v. The Great Atlantic & Pacific Tea Co., Inc. et al.
Appeared for: All defendants

OOH&D successfully secured a change of venue from New York County to Suffolk County. We are optimistic, as we continue to defend this action, that our client will now have the best chance for a favorable outcome in this new venue.

MUNICIPAL and SCHOOL DISTRICT LIABLITY

Miller v. Kings Park Central School District
Appeared for: Defendant

OOH&D successfully obtained summary judgment, the decision having been affirmed by the Second Department of the Appellate Division. OOH&D was able to demonstrate that the school district maintained its playground in a reasonably safe condition and further, that plaintiff's expert affidavit should be disregarded where said expert first inspected the premises seven years following the incident and relied upon alleged violations of the American Society for Testing and Materials and the United States Consumer Product Safety Commission which are non-mandatory and not meant to be the exclusive standards for playground safety.

Melgarejo v. Cold Spring Harbor School District
Appeared for: Defendant

OOH&D was successful in achieving dismissal on summary judgment of plaintiff's claims in their entirety. The plaintiff herein was a student injured during a Project Adventure gym class at school. Plaintiff alleged that defendant was negligent in failing to provide adequate supervision over her while engaging in the class' activities. OOH&D demonstrated that a lack of adequate supervision was not, as a matter of law, a proximate cause of plaintiff's accident.

Hwangbo v. Nobles & Lebron
Appeared for: Nancy Lebron and the Malverne Union Free School District

OOH&D was successful on appeal in procuring dismissal of plaintiff's claims asserted as against our client where plaintiff failed to file a notice of claim within 90 days of the occurrence and also failed to commence the lawsuit within 1 year and 90 days of the occurrence. Plaintiff argued that the defendant was equitably estopped from claiming the expiration of the applicable statutes of limitations based upon ongoing settlement negotiations. According to the Appellate Division, the plaintiff failed to offer sufficient evidence warranting invocation of the doctrine of equitable estoppel. Furthermore, as the request by the plaintiffs to serve a late Notice of Claim was not made until after the expiration of the 1 year and 90 days statute of limitations for the commencement of a lawsuit, the Appellate Division also determined that the lower court lacked the authority to grant plaintiffs an extension.

Starling v. Suffolk County Water Authority
Appeared for: Suffolk County Water Authority

OOH&D was successful in securing summary judgment on behalf of the defendant, that decision having been sustained on appeal. The plaintiff, Starling, tripped on an unsecured water meter cover. The court determined that defendant had no notice of the claimed defect and provided sufficient evidence that it had not created the condition because defendant's meter reader would, as a matter of custom and practice, re-secure the water meter cover each time he took a reading.

Schultz v. Bridgeport & Port Jefferson Steamboat Co.
Appeared for: S&S Complete Landscaping Corp.

Plaintiff slipped and fell on snow/ice while at the Port Jefferson ferry terminal and suffered a fracture of her left radial head and capitellum, requiring surgery. Plaintiff, aged 67 years, was thereafter diagnosed with complex regional pain syndrome. OOH&D was successful in procuring dismissal on summary judgment, both of plaintiff's claims, based on the Espinal doctrine, and those of the co-defendant. That decision was affirmed on appeal.

MOTOR VEHICLE LITIGATION

Bove v. Singh

OOH&D was able to achieve a very favorable outcome at trial where the plaintiff police officer was struck down by our client's taxi cab while regulating traffic. Plaintiff's demand at trial was $250,000. The verdict, rendered in the Supreme Court, Queens County, was $22,500, with the police officer having been assessed 50% liability for the happening of the accident.

Munoz v. Schnitzler

OOH&D successfully procured a summary judgment dismissal of plaintiff's case. Hon. Sydney F. Strauss, Supreme Court, Queens County, determined that plaintiff failed to create a question of fact that he sustained a serious injury as a result of this incident because the plaintiff's treating surgical orthopedist failed to address plaintiff's pre-existing injuries and complaints to his right shoulder. Judge Strauss also noted that plaintiff's treating physician did not indicate the means of measurement used to determine range of motion and/or positive permanent or significant limitations. As a result, the conclusions of plaintiff's expert were deemed speculative. Finally, Judge Strauss indicated that the plaintiff failed to establish a question of fact with respect to the 90/180 day category of the serious injury statute because plaintiff's Bill of Particulars indicated that he was still partially incapacitated from a prior accident when the subject incident occurred.

Costa v. Lopez

This Queens County case involved an intersection accident that occurred at the intersection of two one way roadways, viz., 69th Lane and Caldwell Avenue in Maspeth, Queens. OOH&D's client, a black car limo driver, struck the plaintiff, a 62 year old Hispanic man, who was riding his bicycle the wrong way on Caldwell Avenue. Our client had a stop sign, at which he claimed to have stopped, but he left the accident scene before the police were called. The plaintiff claimed to have suffered a fractured rib, low back injury and a closed head injury.

At the time of trial the plaintiff called an independent witness who claimed to have seen the accident. On cross examination the witness conceded that he actually heard, rather than saw, the collision occur.

The jury took only 20 minutes to render a defense verdict.

Barreda v. Amrit Limo

A Kings County action involving a bicyclist who, while riding on Spring Street in lower Manhattan, was struck when the passenger in our client's vehicle, which had stopped to allow him to get out, opened the right side rear door. Plaintiff suffered a torn right ACL (which had been previously repaired by surgery) and underwent a surgical revision that required the insertion of fixation hardware together with a tendon/bone graft of the damaged ligament. The passenger, who had been named as a co-defendant in the case, settled with plaintiff's counsel for $ 15,000 before depositions were held; he was uninsured and paid this sum of money from his own pocket.

At trial, OOH&D procured a defense verdict in that the jury found our client was negligent but that his negligence was not a factor in causing the accident.

Kim v. Gomez

Summary judgment on liability had been granted as against OOHD's client in connection with a motor vehicle accident. Plaintiff's demand was $250,000 and she was alleging multiple right knee tears with surgery and a lumbar herniation. Plaintiff was in her 30's and the matter was venued in Queens County. The binding arbitration decision awarded plaintiff $40,000.

Gammarra v. Mohamed Ovaaz

Plaintiff, a visually impaired 82 year old woman, was struck by defendant's taxi cab as she was crossing the street. OOH&D alleged, on defendant's behalf, that plaintiff's vision was grossly compromised by cataracts and it was her negligence in entering the roadway against the light that was the sole proximate cause of the accident. Plaintiff suffered a fractured arm, for which she received conservative treatment. Plaintiff demanded the defendant's full policy of $100,000. At trial before the Hon. Loren Baily-Schiffman, a Kings County jury rendered a defense verdict.

Mangione v. Jacobs, Ramavel Limo et al.

In an issue of first impression, Justice Charles Markey struck plaintiff's personal injury complaint for her willful failure to appear for several rescheduled Independent Medical Examinations before she underwent non-emergency back surgery. Since there were no New York State cases on the issue, the Court relied on a Delaware State Court decision striking a plaintiff's Complaint, due to the defendant's inability to conduct an Independent Medical Examination to ascertain plaintiff's pre-surgery condition, because that plaintiff had also undergone a non-emergent surgical procedure. The decision was cited on the front page of the New York Law Journal and was also the subject of a Thomson Reuters news story.

Kerness v. Schoenfeld et al.
Appeared for: Harris Schoenfeld

We defended the owner operator of a motor vehicle in a wrongful death action arising out of an intersection accident where the opposing driver (plaintiff's decedent) sustained fatal injuries and our client's head injury left him with no recollection of how the accident occurred. At trial and upon the close of plaintiff's evidence, OOH&D moved for directed verdict arguing that there was a lack of prima facie evidence of our client's negligent conduct. Hon. Arthur Pitts of the Supreme Court, Suffolk County agreed that any verdict rendered in favor of plaintiff would be completely speculative, and so plaintiff's claims were dismissed in their entirety.

PRODUCTS LIABILITY

Cipriano v. Nouveau Elevator et al.
Appeared for: Nouveau Elevator Corp.

OOH&D represented the elevator maintenance company in this elevator mis-leveling case. Plaintiff alleged that, as a result of tripping over the greater than two inch misleveling she suffered facial lacerations that required plastic surgery and left residual scarring. Plaintiff also alleged an exacerbation of her pre-existing psychological condition. The matter was tried to verdict in the Supreme Court, Kings County and the jury awarded the plaintiff $66,000, including $26,000 in lost earnings. OOH&D was successful in demonstrating to the jury that plaintiff's depression was not only a pre-existing condition, but one which she was struggling with in the time period just prior to this accident.

Vazquez v. Graco Children's Products Inc. et al.
Appeared for: All defendants

In this Bronx County action, plaintiffs alleged that their 14 month old son suffered a traumatic brain injury, developmental delays, including speech, impaired motor and sensory, processing skills and blunt face and head trauma and abrasions, as a result of tumbling down a short stairway while within a Graco walker. Plaintiffs alleged that the Graco walker had a design defect in that the walker lacked sufficient anti-skid devices.

OOH&D moved for summary judgment seeking to dismiss plaintiff's claims concerning traumatic brain injury and developmental delays by demonstrating that the infant plaintiff was actually autistic and that any developmental delays he may be experiencing were not causally related to the occurrence of this accident. Upon the rendering of that favorable decision, the matter was then settled for $30,000.

Meza v. 509 Owners Corp. et al.
Appeared for: Nouveau Elevator Industries Inc.

In this New York County case, plaintiff tripped and fell exiting the elevator at her workplace, allegedly because the elevator was misleveled. OOH&D successfully moved for summary judgment dismissing plaintiff's claims against Nouveau by demonstrating that there was no prior notice of the specific defect that caused the misleveling to occur on the date of plaintiff's accident. There had been a prior problem with the elevator three weeks before plaintiff's accident, but that condition had been resolved and was not the cause of the misleveling on the date of plaintiff's accident. Moreover, plaintiff's reliance on the doctrine of res ipsa loquitur was misplaced as plaintiff's accident could have occurred even in the absence of negligence on the part of any defendant.

White v. Raydal et al.

Plaintiff alleged that she purchased a sandwich from fast food restaurant and upon her consumption of the sandwich, she ingested metal pins allegedly contained therein. OOH&D successfully established that the metal pins allegedly found by plaintiff in her sandwich were not and could not have been within the subject chicken patty at the time it left our client's plant. In opposition, plaintiff failed to raise a triable issue of fact, and thus, the court granted OOH&D's motion and dismissed all causes of action against our client.

MEDICAL, OPTHALMIC, PHARMACEUTICAL MALPRACTICE

Raynor v. St. Vincent's Hospital et al.
Appeared for: C.O. Bigelow (pharmacy)

In this pharmaceutical malpractice case the plaintiff's decedent was a 31 year old PhD candidate who died of an acute asthmatic condition. The plaintiff claimed that the decedent's primary care physicians committed malpractice by not charting the prescriptions they gave him for Albuterol and further by not recognizing his over use of Albuterol and taking other action to address his overuse. Plaintiff further claimed that the emergency room physician committed malpractice by not admitting the plaintiff to the hospital on his third visit in one month's time, when they discharged him in such a condition that his breathing ability, after five hours of highly concentrated steroid treatment, was barely half normal. Plaintiff also claimed that the insured pharmacy was negligent in not informing his primary care physician and the plaintiff, of the serious nature of his asthmatic condition over a seven month period when the insured started to refill an Albuterol prescription with ever increasing frequency and with significantly early re-fillings which allowed the decedent to greatly overuse the medication with the consequence that its overuse caused a further deterioration of his condition.

At the time of death the plaintiff had been offered an employment position at a salary of $125,000 plus company benefits. At that time he was married and his wife was six months pregnant. His economist projected nearly five million in net pecuniary loss. The economic damages component with interest potentially totaled approximately $8 million dollars.

A trial was held before the Hon. Eileen Bransten in Supreme Court, New York County and a defense verdict rendered in favor of all defendants.

Brown v. Speaker et al.
Appeared for: William Tullo, O.D.

The plaintiff in this case generally alleged that he suffered grievous injury as a result of having undergone LASIK surgery. Plaintiff alleged a lack of informed consent as well as negligent performance of the surgery. The matter was tried before Hon. Joan Carey in Supreme Court, New York County and a defense verdict rendered by a jury in favor of all defendants.

GENERAL NEGLIGENCE

Gaynor v. Cassone Leasing, Inc.
Appeared for: defendant-respondent

Plaintiff sought to recover for injuries sustained in a work-related accident when the chain attached to defendant's storage container broke while the container was being dragged onto an extended flatbed truck, causing the hook on the chain to snap back and strike plaintiff in the face. Defendant Cassone moved for summary judgment, arguing that although plaintiff was a general employee of non-party of Lady L Corp., he was a special employee of defendant Cassone. Plaintiff had applied for and received Workers' Compensation benefits. Cassone argued that the exclusive remedy provided by the Workers' Compensation Law barred plaintiff's claims against Cassone.

In support of the motion for summary judgment, Cassone submitted prima facie evidence that plaintiff was its special employee. The evidence demonstrated that the relationship between plaintiff and Cassone contained all of the essential components of an employment relationship, including the right to hire and fire, the right to reprimand and discipline, the right to set hours and approve vacation time, and the right to set salary and determine raises. Furthermore, Cassone trained plaintiff, supervised him, and directed and controlled his daily assignments. In addition, the work being performed by plaintiff at the time of the occurrence was in furtherance of Cassone's business, as the general employer was a trucking company whose sole purpose was to deliver and pick up Cassone's containers from Cassone's customers. Thus, it was clear that plaintiff's general employer had surrendered control of plaintiff to Cassone, and that Cassone had assumed control and direction over the manner, details, and ultimate result of plaintiff's work.

The trial court granted Cassone summary judgment, dismissing the appeal. The Appellate Division affirmed, noting that as the special employer, Cassone was entitled to rely on the exclusivity of the Workers' Compensation benefits that plaintiff had received from his general employer.

Isselbacher v Larry Lopez Truck Equip. Mfg. Co.
Appeared for: defendant-respondent, Cassel

Plaintiff sought to recover for personal injuries allegedly sustained when he attempted to manually engage the dump mechanism on his 16-foot flatbed dump truck, while the engine was running, by inserting his arm into the undercarriage of the vehicle and moving the lever or valve in close proximity to the spinning drive shaft. His hand came into contact with the shaft, which sucked his hand in, removing his glove and a portion of his hand. Plaintiff commenced suit against Cassel GMC Truck Sales Corp., from whom he had purchased the truck in December of 1999, and Larry Lopez Truck Equipment Mfg. Co., which had installed the dump mechanism in the truck at or about the same time. Plaintiff began experiencing problems with the dump mechanism when he manually engaged the lift in March of 2001 and had previously manually engaged the lift in the same manner some 5 to 8 times before the day of the accident. Cassel and Lopez moved for summary judgment, arguing, inter alia, that plaintiff's own negligence in attempting to manually engage the dump mechanism while the engine was running was the sole proximate cause of his accident. The motions were granted, and plaintiff appealed. The Appellate Division affirmed, finding that the defendants had met their prima facie burden of establishing that the sole proximate cause of the accident was plaintiff's own negligence, and plaintiff failed to raise a triable issue of fact in opposition.

BCRE Riverside v. Fuchs
Appeared for: BCRE Riverside

Motion to amend pleadings by defendant successfully opposed by OOH&D in landlord/tenant action in which tenant sought to raise counterclaims of defamation, injurious falsehood and malicious prosecution. Tenant was reported in newspaper article as having dropped urine and other objects onto construction workers from his apartment during the condominium conversion of his building. The decision of the court below denying him such leave to amend was affirmed by the First Department of the Appellate Division.

Jorgensen v. New York Foundation for Senior Citizen Guardian Service, Inc. et al.
Appeared for: All defendants

Plaintiff suffered a severely lacerated tendon in his hand when a piece of glass was dropped by an employee of the defendant. A trial before the Honorable Justice Stanley Green in Supreme Court, Bronx County resulted in a jury verdict in favor of the defendants based on a lack of foreseeability. Plaintiff appealed to the First Department based upon an objection to the Judge's jury charge on foreseeability. Defendants argued to the Appellate Division, First Department that the charge was proper and that Judge Green simply marshaled the evidence for the jury in providing the charge. The Appellate Division agreed finding that the Judge "…properly incorporated the factual contentions of the parties in respect of the legal principles charged." Plaintiff filed a motion for leave to appeal to the Court of Appeals which was opposed by OOH&D and then denied.

Terry v. Danisi Fuel Oil Co. et al.
Appeared for: Danisi Fuel Oil Co.

OOH&D successfully defended a fuel oil delivery company in an action where plaintiffs (two adult brothers) alleged negligent installation of a boiler/hot water heater's mixing valve and aquastat resulting in severe second and third degree burn injuries to each brother, after which plaintiff #1 suffered an unrelated seizure, falling into a water drawing bathtub, and plaintiff #2 attempted rescue. OOH&D successfully moved for summary judgment dismissal of plaintiffs' complaint based upon unforeseeability and proximate cause. Upon reversal by the Appellate Division, the matter was favorably settled while a second summary judgment motion was pending in the lower court on lack of duty owed (our client had retained an independent contractor to perform the installation work). Plaintiff #1's case settled for $250,000, of which our client paid $25,000; plaintiff #2's case settled for $450,000, of which our client paid $25,000.

NO FAULT

Empire State Psychological Service, P.C. v. Travelers Ins. Co.

No-Fault trial conducted before the Honorable Justice Howard G. Lane in Civil Court, Queens County wherein the only evidence submitted by the plaintiff was defendant's response to an interrogatory which admitted that a bill in an undisclosed amount was received by the defendant and that the defendant denied same based upon a lack of medical necessity. As the interrogatory response did not attach the bill in dispute, the Appellate Term concluded that the plaintiff failed to establish a prima facie case and reversed the lower court's denial of defendant's motion for judgment as a matter of law.

HT Medical v. Travelers Indemnity Insurance Co.

Plaintiff's complaint was dismissed on motion by OOH&D due to plaintiff's failure to comply with a so-ordered stipulation for discovery, which contained preclusion language. As discovery not provided, plaintiff was precluded from offering evidence at trial and, as a result, could not establish a prima facie case.

Steve Rosenthal Acupuncture P.C. v. Discover Property & Casualty Co.

Summary judgment was granted in our client's favor and the complaint dismissed as plaintiff's proof of mailing had incorrectly set forth the suite number for the insurer and the insurer additionally claimed non-receipt of the bills in dispute.

Darlington Medical Diagnostic P.C. v. Maya Insurance Co.

OOH&D successfully procured a dismissal on summary judgment where was were able to establish that proper payment had been issued under the Chiropractic Fee Schedule and that the amount billed and sought by plaintiff in the complaint was incorrect under the Workers' Compensation Fee Schedule.

Bedford Park Medical Practice, P.C. v. Travelers Insurance Co.
East Coast Acupuncture P.C. v. Travelers Insurance Co.
Omni Chiropractic P.C. v. Travelers Insurance Co.

OOH&D prevailed at trial, without calling any witnesses or introducing any documentary evidence, because the plaintiff failed to establish that the claims in dispute were overdue. The decision of trial court was affirmed by the Appellate Term.

Dilon Medical Supply v. Travelers Insurance Co.

We obtained a directed verdict from Hon. Kevin J. Kerrigan in Civil Court, Queens County when the plaintiff sought to establish its prima facie burden through the submission of its Notice to Admit and our response thereto. The decision of Judge Kerrigan was affirmed by the Appellate Term.

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