John Blumenstock recently obtained a defense verdict in a pedestrian knockdown case in NY Supreme Court, Rockland County. On the night of October 15, 2013, a then 67-year-old woman with considerable emotional issues, was struck and dragged 20-30 feet along the roadway by our client’s bus as she was crossing the entrance to the New York State Thruway in Clarkstown, New York. Plaintiff alleged that the driver negligently failed to see her in the crosswalk despite good lighting and clear conditions and failed to yield the right of way. John argued that plaintiff was not in the crosswalk, difficult to see in dark clothes, walked between cars/traffic, and stopped in middle of road without trying to avoid contact with bus.
As a consequence of the accident, plaintiff claimed she sustained fourteen broken bones (three requiring surgery,) ligament injuries, lacerations requiring debridement and closure with sutures and fracture blisters. She was hospitalized for two months and then had to undergo 5 months of inpatient rehabilitation physical and occupational therapy. Medical expenses were roughly $1,240,000.
Prior to trial, the plaintiff’s demand stood at $2,500,000. The jury returned a complete defense verdict on liability after 20 minutes of deliberations.
Gallo Vitucci Klar is pleased to announce that we have moved our New Jersey office to 3 University Plaza Drive, Suite 402 in Hackensack, NJ. The new office more than doubles our NJ office space, allowing us to better serve our clients’ needs.
Our firm, has 70 attorneys in Manhattan, Westchester, Long Island and New Jersey. This move will allow us to better provide our clients with the experience, skill, and creative approach they have come to expect from Gallo Vitucci Klar LLP.
Gallo Vitucci Klar LLP is proud to announce that 14 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2019. These GVK recipients have been recognized as the top attorneys in the New York Metro area for 2019. No more than 2.5 percent of lawyers in the state are selected per year to the Super Lawyers or Rising Stars listings, yet many of our attorneys have been named to the list year after year.
2019 Rising Stars
The GVK 2019 Rising Stars include, Partner, Jessica Clark was selected to the Rising Stars list for her seventh consecutive year in general litigation. Associate, Sarah Allison was selected for her third consecutive year in personal injury defense. Krystina Maola was selected for her excellence in products liability. Associates, Andrew Fluger and Gina Wischhusen were both selected in the area of civil litigation. Partner, Shanna Torgerson was also named to the Rising Stars list for professional liability.
2019 Super Lawyers
In addition to these six Rising Stars, eight of our Partners have been named to the 2019 New York Metro Super Lawyers List.
Senior Partner, Matthew Vitucci has been named to New York Metro Super Lawyer List for his seventh consecutive year for his excellence in civil litigation defense. Managing & Senior Partner, Howard Klar was selected for his eighth consecutive year in civil litigation defense. Chad Sjoquist was selected for his eighth consecutive year in construction litigation and Stephen Hoffman was selected for his fourth consecutive year in civil litigation defense. Jeannine Davanzo has been named to the listing for her fourth consecutive year in products liability defense and Heather Ragone was selected for her fourth consecutive year in transportation and maritime defense work. Partner, Jeffrey Richman was selected for his excellence in personal injury defense. Trial attorney, Kenneth Merber was also named to the Super Lawyers list for his third consecutive year in construction litigation defense.
Matt Vitucci recently obtained a defense verdict in Mercer County, New Jersey on behalf of our client-limousine company-whose vehicle rear ended plaintiff’s car at a speed in excess of 30 miles per hour. As a result of the accident, plaintiff claimed he was caused to suffer an exacerbation of pre-existing lumbar and cervical disc disease, as well as constant severe pain and limitation of movement of the cervical and lumbar spine. Plaintiff also claimed work restrictions in that he could no longer perform his full duties as a laborer and that instead he has been forced to work on light-duty status.
Specifically, plaintiff, Noel Pineda, a 46-year-old Hispanic male, was in the right lane of three southbound travel lanes on Route One in the vicinity of Princeton NJ in heavy stop and go traffic at the time of the accident. Pineda claimed that the impact was very substantial and pushed his car into the rear of the vehicle he was following, bending the frame of his car in the process.
At trial plaintiff claimed that the accident caused him to suffer from an exacerbation of pre-existing lumbar and cervical disc disease as well as constant severe pain and limitation of movement of the cervical and lumbar spine. Plaintiff claimed work restrictions in that he could no longer perform his full duties as a laborer and that instead he has been forced to work on light-duty status. He further claimed at trial that he can no longer perform many of his pre-accident pursuits, including basic activities of daily living and that those are limited by pain and restriction in motion.
The defendant driver testified that he observed the plaintiff moving about freely at the accident situs – bending over to take pictures of the vehicle damage and bending over to get items out of his car in an apparently uninjured fashion. Plaintiff declined medical attention at the scene. It was pointed out by Matt during cross examination that plaintiff was less than forthcoming with regard to information regarding prior injuries to his neck and back. It was further pointed out that plaintiff had been involved in prior accidents—one in 1995 where he fractured his neck and was forced to wear a halo for 6 months. He then then was involved in another accident in 2007. He brought lawsuits for both prior accidents and therein made claims for lower back and neck injuries. Plaintiff’s physician during cross examination admitted that he had been given incomplete information regarding both prior accidents. The defendant’s examining physician opined that any pathology he observed in the MRI’s of plaintiff’s spine all pre-dated the subject accident and that plaintiff’s injuries amounted to sprains and strains only. After deliberations following a 4-day trial the jury returned a verdict for the defendant finding that the plaintiff had failed to prove the defendant was negligent. Congratulations to Matt!
Gallo Vitucci Klar LLP is proud to introduce our new attorneys, Daniel J. Garry, James F. Desmond, Dawn Miller, Christopher L. Parisi, Jeff R. Thomas, Kim H. Townsend, Marissa Dunderdale, Kiel M. Doran, Stephanie M. Gallo, Thomas J. Keevins, and Gina M. Wischhusen!
Daniel J. Garry concentrates his practice on personal injury and construction defect cases. He also has experience in professional liability, insurance coverage, subrogation property damage actions, commercial transportation and maritime law. Prior to joining Gallo Vitucci Klar LLP, Mr. Garry practiced civil litigation in New York and New Jersey, including matters involving personal injuries and allegations of professional malpractice.
James F. Desmond focuses his practice in the areas of general liability and complex defense matters involving construction accidents, trucking and transportation, insurance coverage, labor and employment, and commercial disputes. He has provided counsel to Fortune 500 companies, global insurers, syndicates, directors, officers and employees regarding litigation strategies, risk management, and dispute resolution.
Dawn M. Miller focuses her practice mainly in the areas of general liability and premises liability. Before joining the firm, her practice areas included general liability, automobile liability, premises liability, and property damage/subrogation.
Christopher L. Parisi concentrates his practice on New York Labor Law and negligence claims, as well as other construction-related claims including contract analysis, commercial transportation, and risk transfer. He has represented owners, general contractors, and trade subcontractors, in construction, personal injury, indemnity, and property damage litigations.
Jeff R. Thomas concentrates his practice on general liability, construction litigation, labor law/employment law, elevator and escalator, toxic torts, premises liability, products liability, subrogation/property damage, automotive liability and insurance coverage/indemnification disputes. He has successfully tried cases to verdict and argued appeals before the Appellate Divisions of the First and Second Departments.
Kim Higgins Townsend is a trial attorney focusing on catastrophic high exposure cases. He is a veteran New York City trial attorney, having taken over 200 jury verdicts, in addition to countless settlements over the course of his lengthy career. Mr. Townsend has been trying cases in the New York metropolitan region since his graduation from law school when he was hired by Manhattan District Attorney Robert M Morgenthau as an Assistant Suffolk County Attorney, focusing on sec. 1983 trials, involving police matters, in U.S District Court for the Southern and Eastern Districts of New York.
Marissa Dunderdale, an associate with the firm, focuses her practice mainly on premises liability, construction accident, and insurance coverage and litigation in both New York and New Jersey.
Kiel M. Doran handles claims involving construction accidents, premises liability, subrogation, as well as directors & officer’s litigation. He has experience defending clients in areas including labor law, commercial contract disputes, lien foreclosure actions, motor-vehicle accidents, premises liability action, claims of negligent security, property damage, assault, and dram-shop cases.
Stephanie M. Gallo has over 20 years of insurance defense litigation experience. As a partner with the firm, she focuses her practice on, premises liability, automobile liability and property damage, and construction labor law.
Thomas “T.J.” Keevins focuses his practice on the areas of general liability, labor law claims, automotive liability, construction liability, & premises liability. Mr. Keevins brings nearly 20 years of experience in handling cases involved in alternative dispute resolution, automobile and transportation, class actions, construction accidents, construction defect, criminal law, general liability, municipal liability, no-fault/uninsured motorist coverage, premise, property and security liability.
Gina M. Wischhusen has 10 years of experience and focuses her practice on general liability matters and commercial litigation. She has handled personal injury claims relating to construction site accidents, premises liability claims, and trucking/automobile matters.
On January 24, 2019, the Appellate Division First Department dealt a blow to plaintiffs’ attempts to hide their activities on social media. In the case of Vasquez-Santos v Matthew, 2019 N.Y. App. Div. LEXIS 527, the Court held that, “[p]rivate social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims’”
In Vasquez, the plaintiff, a semi-professional basketball player, alleged that the injuries he sustained in a motor vehicle accident prevented him from performing certain activities, including basketball. When confronted with photos posted on his Facebook page depicting him playing basketball, he explained that the photos were from games played before the accident. Nevertheless, the Appellate Division held that the defendant was entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury and granted access to plaintiff’s accounts and devices, limited to those items posted or sent after the accident, and in subject matter.
The right to obtain access to a plaintiff’s Facebook page (or other social media) is not unlimited and is based on a case by case basis. In the case of Forman v Henkin, 30 N.Y.3d 656 (2018), the Court of Appeals, the highest Court in New York, permitted the defendant access to the plaintiff’s Facebook page and found it to be “material and necessary” under CPLR 3101 (a), as it was highly relevant to the issues in controversy, specifically the plaintiff’s decedent’s health at the time of the accident and prior thereto. In deciding the accessibility to a plaintiff’s Facebook materials, the Court of Appeals instructed the lower courts to weigh the following factors:
- The nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account;
- Balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder. In a personal injury case, the Court held that it was appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate—for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.
The liberal discovery laws in New York requiring parties to disclose what is material and necessary is what Courts seem to be hanging their hat on to compel disclosure. Based on the above factors, it is clear that Courts will be weary in ordering a plaintiff to provide unrestricted and unfettered access to their Facebook page. That being said, a plaintiff who testifies that he can no longer play basketball (but has basketball photos on his page), cannot dance (but is seen dancing), or cannot focus for long periods of time (but writes poetry on their Facebook page), may be susceptible to having the Court order them to grant access to their full page. In this case, the plaintiff claimed that the photo of him playing basketball was taken before the accident and therefore, the court permitted a third-party vendor to examine the meta data to challenge plaintiff’s claim of when the photo was taken. The Court, however, also said that during the inspection of the meta-data, any post- accident items discovered that depicts the plaintiff engaging in activities that contradict his claim of damages and limitations would also be subject to the inspection.
Defense counsel should be searching the various social media platforms (Facebook, Instagram, Linked In, Twitter and You Tube) upon assignment and saving any photos, videos or postings which may impact the damages analysis of the case. Once a plaintiff provides testimony as to their inability to engage in social or recreational activities, these photos should be marked and shown to the plaintiff and questioned about any other postings that could be on their social media pages. Based on the decisions issued thus far, the more conflicting evidence between the plaintiff’s testimony and the photos, the better your chances for gaining access.
For more information, please contact Matthew Levy at MLevy@gvlaw.com or Bryan Schwartz at Bschwartz@gvlaw.com or by phone at 212-683-7100
Plaintiff alleged that while in the course of his employment on a construction site in New York County he was struck in the head and face with rebar, causing him to fall and sustain numerous physical injuries. We represented the owner and general contractor on the project. In plaintiff’s hospital chart he is credited as saying he injured himself while trying to lift, push and pull rebar and not after being struck in the head and face, as he alleged at deposition. Plaintiff’s entitlement to a finding that defendants violated Labor Law § 240(1) went to the Appellate Division, First Department. The First Department held that if plaintiff’s version of the accident occurred as alleged, the accident fell within the definition of Labor Law § 240(1). However, because of the discrepancies contained in the hospital records, the defendants were entitled to a jury trial.
At trial, plaintiff’s counsel fought vigorously to keep the hospital records from the jury. Included in plaintiff’s counsel’s argument is that the plaintiff, who spoke Spanish, did not have a translator. However, we successfully argued that plaintiff’s admissions were sufficiently reliable and germane to diagnosis and treatment. Moreover, and to further drive our position home with the jury, we subpoenaed one of the record keepers. This allowed us to introduce an additional prior inconsistent statement into evidence.
As a result of the accident, plaintiff, who was only 36 years-of-age at the time of the alleged accident, underwent five surgeries including two for a right shoulder rotator cuff tear and three hip surgeries. He also alleged neck and back injuries. Prior to trial, plaintiff’s demand was $4.5M. Defendants offered $50,000. At closing, plaintiff’s counsel asked the jury to award his client $5.25M. After less than two hours of deliberations, the jury awarded him $0.
On January 11, 2019, Kenneth S. Merber obtained a favorable verdict in favor of the firm’s client. The case was transferred by the client to Ken from another firm for trial purposes. Ken’s represented a commercial bus company and its driver that struck Plaintiff’s car.
As a result of the accident, Plaintiff sustained fractures of his left distal radius and ulnar styloid of his left wrist and a fracture of the base of his second metacarpal. He had surgery to repair an alleged TFCC tear and the removal of a ganglion cyst from his left wrist. Plaintiff also underwent left ulnar decompression and left ulnar nerve transposition surgeries. Plaintiff also alleged he suffered 3 cervical and 1 lumbar disc herniations in addition to a TBI and neuropsychological injuries. He underwent a lumbar fusion at L4-5 with implantation of a cage, bone graft and bone stimulating device. All of the hand and wrist fractures and herniated discs were confirmed by the defendants’ orthopedic expert.
Ken conceded liability and that all of the wrist/hand fractures and treatment related thereto were caused by the accident and that Plaintiff was entitled to reasonable compensation for those injuries. Ken argued that none of the neck or back injuries or the substantial treatment Plaintiff received were causally related to the bus on car accident. Plaintiff alleged $390,000 in past medical expenses and $750,000 would be required for his future medical care needs. Plaintiff’s demand was $1.4 million. Ken’s client had offered $425,000. After a 4 week trial in the Superior Court of New Jersey, Bergen County, the 8 jurors returned a unanimous verdict of $10,000 for Plaintiff’s pain and suffering related to the wrist injury. They concluded Plaintiff did not suffer a causally related neck or back injury. They awarded $28,640 for Plaintiff’s past medical expenses and -0- for his future care.
Last week, Matthew J. Vitucci obtained the dismissal of a motor vehicle case in the Bronx. The facts were simple, our client’s tractor trailer rear ended the plaintiff’s work van in which he was a passenger. Mr. Vitucci conceded liability to defend various causation issues connected with plaintiff’s cervical fusion and shoulder surgery.
After the accident, plaintiff had extensive medical treatment including an emergency room visit with complaints of pain to his head, neck, and mid back. Following his release from the emergency room, plaintiff’s treatment included a chiropractor, an acupuncture specialist, a neurologist and an orthopedic surgeon. He underwent MRIs of his neck, mid back, lower back and brain. He was subsequently referred to a spinal surgeon who later performed a cervical discectomy and fusion. Plaintiff later underwent an arthroscopic procedure on his shoulder. Finally, plaintiff claimed to have sustained a traumatic brain injury which lead him to be forgetful and unable to find his doctors to attend medical appointments, which allegedly rendered him to be non-functional.
On direct examination, plaintiff testified that he could not return to work as a construction welder or continue his black belt training in karate. Plaintiff contended he had no source of income and basically sat around his house.
During a two-day cross examination of the plaintiff, in a rare real-life Perry Mason moment, it was revealed to the jury that the plaintiff and his common law wife had purchased and were in the process of renovating 6 buildings in a low income neighborhood for rental and that plaintiff had perjured himself by stating under oath that he and his wife lacked any income following the accident. Following the cross examination, plaintiff’s counsel moved to be relieved as counsel. Mr. Vitucci’s cross motion, for an order of dismissal premised upon plaintiff’s documented perjury on the stand, was granted. Immediately prior to the dismissal of the case, counsel had in court and was ready to call to the stand a renowned neuropsychologist who was prepared to testify that the plaintiff suffered from encephalopathy which rendered him cognitively as someone who is suffering from severe dementia. The last settlement demand was the policy limits.
