GVK’s client was a supermarket that leased space in a strip mall. Plaintiff, a patron who had just left the supermarket, was injured when she tripped and fell in a hole in the parking lot. Plaintiff sued the supermarket, the property owner and the parking lot maintenance company.

The property owner asserted cross-claims for contractual indemnification.  Arguing Espinal, the case by plaintiff was fairly easily dismissed. The cross-claims were more complicated but by juxtaposing the carefully elicited deposition testimony with the language of the agreement between the property owner and supermarket, we successfully demonstrated to the Court that the supermarket did not owe a duty to the property owner despite the plaintiff having just come from its store.

Gallo Vitucci Klar LLP is proud to announce that 10 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2018. These GVK recipients have been recognized as the top attorneys in the New York Metro area for 2018. 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.

2018 Rising Stars

The GVK 2018 Rising Stars include, Partner, Daniel P. Mevorach, who was selected for his seventh consecutive year for his excellence in insurance coverage defense. Partner, Jessica Clark was selected to the Rising Stars list for her sixth consecutive year in general litigation. Associate, Sarah Allison was selected for her fourth consecutive year in personal injury defense.

2018 Super Lawyers

In addition to these three Rising Stars, Senior Partners; Matthew Vitucci and Howard Klar, and Partners; Chad Sjoquist, Stephen Hoffman, Jeannine Davanzo, Heather Ragone and Kenneth Merber have been named to the 2018 New York Metro Super Lawyers List.

Senior Partner, Matthew Vitucci has been named to the New York Metro Super Lawyers List for his sixth consecutive year for his excellence in civil litigation defense. Managing & Senior Partner, Howard Klar was selected for his seventh consecutive year in civil litigation defense. Chad Sjoquist was selected for his seventh consecutive year in construction litigation and Stephen Hoffman was selected for his third consecutive year in civil litigation defense. Jeannine Davanzo has been named to the listing for her third consecutive year in products liability defense and Heather Ragone was selected for her third consecutive year in transportation and maritime defense work. Trial attorney, Kenneth Merber was also named to the Super Lawyers list for his third consecutive year in construction litigation defense.

Following a three-day bifurcated trial before The Honorable Larry Martin in the Supreme Court, Kings County, James Deegan obtained a defense verdict for our clients, in the matter of Guez v. Frishberg. At trial, the issue was whether the defendants were negligent in allowing or creating a recurring ice condition caused by improperly maintained awnings and gutters; which allowed for melting snow to run off onto the landing and the exterior stairs below. GVK clients, Kenneth and Sally Frishberg, the owners and first floor residents of a two-family residential building in Brooklyn, NY, rented the 2nd floor apartment of the building to plaintiff. The Frishbergs retained the responsibility of maintaining the exterior of the premises, including snow and ice removal throughout the course of the tenancy.

Plaintiff claimed that his fall was due to the accumulation of ice on the landing from snow melting and freezing over the course of several days, which stemmed from a snow storm of over twenty-two inches that fell five days earlier. Although, defendants admitted to the recurring ice condition and the presence of ice on the stairway, Mr. Deegan argued that the incident arose from plaintiff tripping rather than slipping on ice and citing to an EMT report quoting plaintiff, and that the landing outside plaintiff’s front door was free and clear of ice. Mr. Deegan ultimately convinced the jury that plaintiff was solely responsible for his own accident by virtue of his admissions to the EMT attendants and convinced the jury that plaintiff’s fall was not due to any recurring ice condition caused or created by the defendants.

Plaintiff claimed the incident caused injuries to his neck, back and a displaced distal fracture of the humerus requiring surgery involving open reduction and internal fixation and several months of physical therapy.

Plaintiff’s pre-trial demand was $450,000.00. A final offer of $175,000.00 was made at the close of plaintiff’s case, however, plaintiff rejected the offer. The trial proceeded to summations and verdict wherein the jury returned a defense verdict in less than 45 minutes.

On June 29, 2018, Chad Sjoquist obtained a unanimous defense verdict on behalf of a Turkish restaurant and its employee in a lawsuit involving a collision of two bicycle riders in Manhattan. The case was tried before Justice Andrew Borrok in the Supreme Court, New York County.

The plaintiff was riding his bicycle home from work and was traveling north in a bicycle lane on the Upper East Side. He claimed that our client’s delivery person was illegally riding south in the same bicycle lane, and suddenly turned into the plaintiff. The employee denied this allegation and claimed that he was also riding north when the plaintiff tried to pass him and struck the employee’s bicycle.

The plaintiff sustained multiple fractures and dislocations in his left shoulder, elbow and forearm, and he underwent four separate surgeries. His counsel asked the jury to award at least $3.5 million in damages, and the plaintiff’s settlement demand was never below our clients’ primary policy limit.

During the trial, Mr. Sjoquist raised significant questions regarding the plaintiff’s credibility based on the plaintiff’s criminal history and inconsistent testimony regarding certain details of the accident. Mr. Sjoquist also called the customer who had ordered the food that the client was delivering at the time of the accident and who was north of the accident location, to corroborate the delivery person’s assertion that he was riding north at the time of the accident. After asking for various exhibits, the jury deliberated for less than fifteen minutes before reaching a unanimous defense verdict.

In a matter tried before Judge Christine Farrington in the New Jersey Superior Court, Bergen County, over the course of two weeks, Matthew J. Vitucci obtained a defense verdict on behalf of a tractor trailer company and its driver, in a highly emotional wrongful death suit filed on behalf of a 13 year old bicyclist.  Plaintiffs, the parents of the bicyclist, sought recovery for wrongful death, conscious pain and suffering and fear of impending death.   Plaintiffs sought recovery above the defendants’ policy limits pursuant to a claim of bad faith.

On June 17, 2015, the 13 year old was bicycling to school.  Upon approaching the intersection where the accident occurred, the child was seen by the defendant driver to be riding fast along a downhill roadway while also looking down.  During the trial cross examination of plaintiffs’ witnesses, including a school crossing guard and a responding police lieutenant, it was revealed that at the time of the fatal collision, the child was late for class.

There was no traffic control in the bicyclist’s direction, whereas the tractor trailer had a stop sign facing him at the subject intersection.  After stopping and then moving forward to see beyond overgrown foliage, the truck driver proceeded to execute a left turn.  As the truck was turning, the bicyclist made contact with the rear wheels of the 67 foot tractor trailer and sustained grievous injuries resulting in his death.

Plaintiffs claimed that the defendants bore liability for failing to yield to the bicyclist who had the right of way and was in a school zone.

After Mr. Vitucci’s closing statements and within just 28 minutes, the jury returned a unanimous verdict in favor of GVK’s clients, stating that the defendant driver was not negligent in the operation of his tractor trailer.

This case had been the subject of a GVK rapid emergency response led by Heather C. Ragone, which proved enormously beneficial given the early preservation of evidence, interaction with authorities on behalf of the defendants and early involvement of experts, including accident reconstructionist John Desch and forensic pathologist Michael Baden, M.D.

 

Randee Arem concentrates her practice on the defense of commercial and residential properties against premises liability claims, as well as negligent security actions.  Over the course of her time in practice, she has represented professional sports teams and venues, amusement parks, recreational facilities, leagues and organizations, national restaurant chains and retail stores.

As an associate with the firm, Dominic Donato primarily practices in the areas of construction defect and professional liability. Before coming to Gallo Vitucci Klar, Dominic gained valuable experience practicing with a law firm specializing in professional liability defense, where he represented architects and engineers in state and federal litigation throughout New York and Connecticut.

Anne Marie Garcia has been in practice for over 15 years specializing in cases that involve transportation, motor vehicle, uninsured/underinsured motorist provisions, premises liability and construction accidents.  Prior to coming to Gallo Vitucci Klar, she was an associate with another Long Island defense firm where she obtained over 10 trial verdicts, argued many cases before the Appellate Division First and Second Department and arbitrated numerous UM/UIM cases.

Peter LoPalo has more than 15 years representing clients in the areas of automobile, premises liability, Labor Law, construction law and construction defect, liquor liability and assault/negligent security litigation. Peter represents property owners, construction contractors, restaurants, bars, catering halls and other hospitality providers, small businesses, professionals, insurance companies, third-party administrators and their insureds in a wide variety of claims in both federal and state courts in New York and New Jersey.

Krystina Maola’s practice focuses primarily in the areas of general liability and products liability/life sciences. Before joining Gallo Vitucci Klar, her practice areas included, commercial litigation, employment discrimination litigation, commercial contract transactions, and intellectual property.

Wendy Schwartz has more than 20 years of experience in insurance defense litigation. She has handled cases involving premises liability, labor law/construction accidents, automobile and general negligence. She provides her clients with a vigorous defense through the court system.

Shanna Torgerson focuses her practice in the area of liability defense. She has experience handling a broad range of matters, including products liability, labor law, construction defect, premises liability and professional liability actions. Shanna has defended owners and tenants in premises liability matters, contractual disputes and indemnification issues.

William E. Marsala has over 20 years of civil litigation experience representing insureds and self-insured in complex matters on a local, national and international basis. He represents clients in matters involving products liability, premises liability, liquor liability, catastrophic transportation, construction site accident and FELA issues in Federal and State Courts.

In a matter pending in Supreme Court, Bronx County, Andrew C. Kaye obtained summary judgment on behalf of a commercial trash removal company and its driver in a motor vehicle accident case where plaintiff was alleging a traumatic brain injury.

Plaintiff alleged that on May 1, 2007 he was an un-seatbelted back seat passenger in a taxi that was struck in the rear by defendant’s commercial garbage truck.  Plaintiff claims his head struck the partition resulting in, inter alia, a traumatic brain injury.

Plaintiff was represented by a law firm that specializes in prosecuting traumatic brain injuries. Knowing therefore that plaintiff’s counsel likely had the doctors and affidavits necessary to create a question of fact on the medicine, we approached the motion from a different angle, arguing plaintiff lacked evidence a traumatic brain injury contemporaneous with the accident.  Since there were no records to which plaintiff’s experts could point to suggest otherwise, plaintiff was not able to oppose the motion and the Court granted summary judgment.  There were no settlement discussions during the pendency of the motion. However, before making the motion, plaintiff’s demand was “seven figures”.

In a decision that may have a significant impact in certain types of personal injury cases, New
York’s highest court held in Rodriguez v. City of New York on April 3, 2018, that a plaintiff in a personal injury lawsuit may obtain summary judgment on liability against a defendant even where there is an unresolved question of fact regarding the plaintiff’s own comparative negligence.

The plaintiff in Rodriguez was a New York City Department of Sanitation employee who had been assigned to place tire chains and plows on trucks that were about to provide snow and ice removal in New York City. The accident occurred when a sanitation truck backed up and struck a parked automobile that in turn struck the plaintiff.

The plaintiff claimed that the City was negligent and filed a motion for summary judgment based on that alleged negligence. The City opposed and argued that there were questions of fact regarding both its alleged negligence and whether plaintiff’s own negligence contributed to the accident.

Typically, a question of fact as to a plaintiff’s alleged negligence has resulted in the entire question of liability being submitted to a jury, even if it is clear that the defendant was also negligent. In Rodriguez, however, the Court of Appeals, by a 4 to 3 majority, held that where the evidence establishes that a defendant was negligent as a matter of law, the plaintiff is entitled to judgment from that negligence and the only liability question for a jury will be plaintiff’s comparative negligence. The Court reasoned that because a plaintiff’s contributory negligence is not a bar to recovering from a negligent defendant pursuant to CPLR 1411, there is no reason why the plaintiff should have to wait until trial to obtain judgment for a negligent defendant’s liability. The Court concluded that lower courts had improperly required plaintiffs to bear the burden of proving that they were free from negligence before obtaining summary judgment, which did not comport with the purpose of CPLR 1411. Under Rodriguez, however, a negligent defendant will now bear the burden of trying to prove a plaintiff’s comparative negligence to a jury that has already been told that the defendant was deemed negligent.

Although the Court’s decision in Rodriguez is not helpful to defendants, it is unclear how this holding will affect personal injury lawsuits. It is still somewhat uncommon for a defendant’s negligence to be established as a matter of law before trial so that no jury resolution of that issue will be required, particularly where the claim is defended by competent and aggressive counsel. The Rodriguez holding will likely apply in the relatively small percentage of cases where there is overwhelming evidence of the alleged accident, the defect or condition that caused the accident, the defendant’s notice of, or other responsibility for, that condition, and the lack of any defense to that liability. There may be certain types of claims, such as transportation accidents, that will be more likely to be impacted. But the Rodriguez holding should not alter the course of most premises liability and other personal injury actions where counsel has set forth a triable defense to the defendant’s alleged liability.

The biggest practical effect of this decision may be to make it more difficult to settle some cases before motion practice and/or before trial. In instances where a defendant’s liability is likely or a plaintiff has already obtained summary judgment, that plaintiff’s leverage will substantially increase because the defendant will be forced to subject itself to the risks of trial to have any chance of establishing the plaintiff’s comparative negligence. In high value cases, early summary judgment may also lead to considerable interest on the plaintiff’s ultimate judgment (likely nine percent from entry of the summary judgment decision), as interest typically begins to accrue once a plaintiff obtains a liability judgment against a defendant.

James Deegan obtained a defense verdict in a work-related construction accident incident involving a trip/slip and fall case in Supreme New York. Plaintiff claimed to slip and fall over carpet tiles strewn across a pathway allegedly left by our client, the carpet tile installer, at a USB Bank under renovation resulting in reconstructive shoulder surgery and single level fusion to the lumbar spine. Plaintiff also alleged permanent disability and lost earnings for over 25 years. Plaintiff’s demand was $5 Million, non-negotiable.

The case was bifurcated due to the fact that a jury could not be empaneled because no jurors were willing to sit for over three (3) weeks. Bifurcating the trial reduced the trial to a few days, making it easier to empanel a jury.
Plaintiff testified that he was vacuuming the second floor while he slipped over loose carpet tiles in the hallway, causing him to fall backwards. During cross-examination Mr. Deegan was able to establish that Plaintiff never looked up or behind himself while vacuuming and had Plaintiff looked to his rear at any time as he vacuumed he would have seen the alleged obstruction without falling.

The jury found the carpet tiler negligent, but found no proximate cause. The jury also found in favor of defendants on the Labor Law section 241 (6) violations alleged.