Kenneth S. Merber, Esq. successfully defended his restaurant client in a slip/trip and fall case in the Supreme Court of the State of New York, New York County.

The claimant, a celebrity and famous collector of rare Asian art, fell while exiting the restaurant sustaining open complex comminuted and avulsion fractures requiring an open reduction and internal fixation with the insertion of multiple plates and screws. Plaintiff also alleged she suffered severe psychiatric injuries and the loss of enjoyment of the pleasures of her life asserting she is no longer able to travel to lecture on, teach, purchase and collect art, her only true passion.

Plaintiff requested that the jury award $7 million. The case was tried for more than 3 weeks before the Hon. David Cohen. The case was strategically defended and fought to optimize plaintiff’s failure to name the premises owner / landlord in this case.

Moreover, focus was given to the plaintiff’s lack of credibility and failure to comply with medical instructions to limit her own damages, both physical and psychological. The “millennial jury” returned a defense verdict after 4 hours of deliberation.

In a matter pending in Supreme Court, New York county, Andrew C. Kaye obtained summary judgment on behalf of a snow removal company in a slip and fall case.

Plaintiff alleged that on December 28, 2011, he was coming out of a bank when he slipped and fell in an area of the sidewalk that was not shoveled, despite the presence of a nearby path.  Plaintiff alleged the snow removal company failed to properly clear or salt the path, arguing therefore, that it did not matter that he chose to walk in an area that was not shoveled. As a result of the accident and resultant injuries, plaintiff claims he lost his moving business and sought more than $1,500,000 in damages.

Because the bank had cross-claims against the snow removal company, Mr. Kaye sought to offer an argument that went beyond an Espinal defense, and using the precise language of plaintiff’s deposition testimony, Mr. Kaye developed an argument that plaintiff was the sole proximate cause of his accident. The Court agreed, noting plaintiff’s claims about the condition of the path were red herrings and that no reasonable fact finder would conclude defendants were negligent. The Court also granted summary judgment in favor of the snow removal company dismissing the bank’s third-party claims for breach of contract.

On February 13, 2017, GVK Partner Matthew Levy obtained summary judgment dismissing Plaintiff’s Complaint, in its entirety, in a premises liability case pending before Justice Barbara Jaffe in the Supreme Court, New York County.  We represented the owner and management company of the building.

The Plaintiff, a 63 year old man, claimed that on August 23, 2012, between 6 pm and 7 pm, he slipped and fell on a puddle of water in the hallway on the 7^th and highest floor of defendants’ building.  As a result of the accident, Plaintiff claimed to have suffered a torn meniscus to his left knee requiring arthroscopic surgery.  Plaintiff also claimed an exacerbation of left shoulder injuries, which required him to undergo arthroscopic surgery.

Plaintiff testified that it had rained hard that day between 3 pm and 4 pm.  After he slipped, Plaintiff touched the ground, felt that it was wet and saw a three to four foot long puddle of water on the floor.  He did not know how long the water had been present on the floor, but believed that it had come from a leak in the ceiling as he had seen a water stain on the ceiling and felt a few drops of water fall on him.  We hired a certified weather expert to establish that it had not rained at all on August 23, 2012.

As part of our investigation into this accident, we also contacted the non-party security guard who was working in the building’s lobby at the time of the accident.  We obtained a copy of the log book entries for August 23, 2012.  The security guard, who appeared for a deposition at our request, testified that during his hourly inspections of the entire building that afternoon and evening, he did not observe evidence of water leaking from the 7^th floor ceiling before, at the time of, or after the accident. The security guard also did not document any water at the location of the accident during his inspections.

The Court held that the evidence submitted by the Defendants in the form of the routine inspections conducted by the security company throughout the day demonstrated that the Defendants did not have actual or constructive notice of the water on the floor.

Yesterday, in Forman v. Henkin, 2018 N.Y. Slip. Op. 01015 (Feb 13, 2018), the Court of Appeals, New York’s highest Court, issued a major decision overruling prior Appellate Division caselaw that required “defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account — that is, information that contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims’” in order to gain access to Facebook account.

The Court of Appeals, while recognizing that commencing a personal injury action does not render a Plaintiff’s entire Facebook account automatically discoverable, and that there should be no one-size-fits-all rule for Facebook account information, held that trial courts should follow a common-sense rule where, in personal injury cases, the nature of the incident and the injuries claimed should be the starting point for what should be disclosed.

This decision liberalizes the requirements for obtaining Facebook account information, and the defendant is no longer limited to obtaining publicly posted information. In cases where the Plaintiff alleges that their personal injuries have had an effect on their activities of daily life (such as socializing, vacations, sports activities, etc.) it seems likely that a Court will order that any pre- and post-accident photographs (whether public or private) of those activities posted on Facebook be disclosed, subject to limitations of disclosure of private or sensitive materials, such as photographs depicting nudity or romantic encounters, or temporal limitations.

Mr. Deegan has been with the firm since 2012. He is one of our senior trial attorneys with his practice concentrating on defending lawsuits involving traumatic brain injuries and catastrophic injuries.

Mr. Deegan has thus brought a wealth of experience to our Trial team. He has successfully defended personal injury claims stemming from incidents on construction sites, residential and commercial premises, toxic torts, motor vehicle accidents, and transportation incidents; claims against manufacturers and distributors; professional malpractice claims against physicians, attorneys, and accountants; and claims asserted against municipalities and governmental entities.

Mr. Scarglato began his career with GVK in 2007 and has proven himself to be a major asset to our transportation team. He has worked on high exposure litigation in commercial transportation, municipal liability and premises liability, from inception through trial, (including brain trauma spinal surgery injury cases to favorable outcomes). Mr. Scarglato has obtained favorable decisions in dispositive motions and most recently a fall from a bus resulting in multiple ankle surgeries.

In addition, Mr. Scarglato has argued appeals in both the First and Second Appellate Departments. His in-depth experience in both trial and appellate advocacy allows him to aggressively litigate cases to a favorable resolution.

Mr. Deegan’s and Mr. Scarglato’s continuing professionalism and dedication has become an integral component of our firm which has vastly contributed to our recent growth and achievements.

In Esen v. Narian, Partner Matthew Vitucci and Appellate Counsel Kimberly Ricciardi successfully appealed the denial of a motion for summary judgment on behalf of Trans Express, a company providing shuttle bus service to and from Resorts World Casino. The plaintiff sustained significant injuries when he was struck by a car as he attempted to cross a street near a marked pedestrian crosswalk at the casino, and commenced an action against the driver of the vehicle which struck him as well as Trans Express, which owned a shuttle bus that was stopped at a stop sign in the adjacent lane of the roadway.

The trial court denied a motion for summary judgment on behalf of Trans Express, based on its finding that issues of fact were present regarding whether the Trans Express driver, in “waving the plaintiff on”, negligently exposed the plaintiff to danger. GVK appealed the trial court’s decision, arguing that the driver who struck the plaintiff had an independent duty to stop at the stop sign in his lane of traffic, and that his failure to stop at the stop sign constituted an unforeseeable, superseding cause of the accident which severed any causal nexus between the plaintiff’s injuries and any alleged negligence of the Trans Express driver in “waving the plaintiff on”.

In a unanimous decision, the Appellate Division, Second Department agreed with GVK’s argument, holding that, “[E]ven if the plaintiff’s claim that he relied upon the bus driver’s wave to cross the roadway before he crossed the street is true, [the defendant driver’s] unforeseeable failure to stop when approaching a crosswalk marked with a stop sign, in violation of the Vehicle and Traffic Law, constituted an intervening and superseding cause that entitled Trans Express to a judgment of dismissal as a matter of law”.

Gallo Vitucci Klar LLP is proud to announce that 11 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2017. These GVK recipients have been recognized as the top attorneys in the New York Metro area for 2017. 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. Approximately 20% of our attorneys have received this recognition this year alone.

2017 Rising Stars
The GVK 2017 Rising Stars include, Partner, Daniel P. Mevorach and Associate, Justin J. Skvarce, who were each selected for their excellence in insurance coverage defense. Partner, Jessica Clark was selected to the Rising Stars list for her fifth consecutive year in construction and general litigation. Associate, Sarah Allison was selected for her excellence in personal injury defense. Associate, Andrew Fluger was selected in the categories of personal injury defense and civil litigation defense. Associate, Brett Kuller was selected for his excellence in professional liability.

2017 Super Lawyers
In addition to these six Rising Stars, Senior Partner; Howard Klar and Partners; Chad Sjoquist, Stephen Hoffman, Jeannine Davanzo and Kenneth Merber have been named to the 2017 New York Metro Super Lawyers List.
Senior Partner, Howard Klar has been named to New York Metro Super Lawyer List for his seventh consecutive year in civil litigation defense. Partner, Chad Sjoquist was selected for his sixth consecutive year in construction law and Partner, Stephen Hoffman was selected for his second consecutive year in civil litigation defense. Partner, Jeannine Davanzo has been named to the listing for her second consecutive year for her excellence in products liability defense. Trial attorney, Kenneth Merber was also named to the Super Lawyers list for his second consecutive year for his excellence in civil/commercial litigation defense.

Gallo Vitucci Klar LLP is continuing its growth and expansion looking for junior to mid-level associates in the following offices and practice areas:

• Associate with a minimum 5-7 years’ experience in the area of commercial transportation. A demonstrated history of handling a full transportation caseload required. Located in our Long Island office.
• Junior level transportation and general liability associate to work in our Hackensack, NJ office. NY & NJ admission preferable.
• Litigation associate with experience in general liability, dram shop and labor law cases to work in our Long Island office or Westchester office. Admitted in NY.
• Junior/mid-level associate with experience in premises liability and labor law looking to expand into other niche areas including life sciences, to work in our Westchester office. Admitted in NY.
• Junior Associate with 2-4 years’ experience in general liability defense to work in Long Island office. Construction defect, labor law, and/or coverage experience a plus but not a necessity for a motivated candidate who is willing to learn from a collegial team of experienced attorneys. Admitted in NY.

If you would like to join our team, please send a cover letter, resume, and writing sample to gvkcareers@gvlaw.com. If your credentials and interests appear appropriate for an open position, you will be contacted.

In keeping align with GVK’s ethos of effective and efficient litigation handling, New Jersey Partner Yolanda Ayala, was successful in getting a dog bite case with allegations of serious injuries to Plantiff’s leg dismissed by Judge Mega in Union County, NJ Superior Court, without the typical litigation costs associated with lengthy discovery and within 90 days of assignment.  Ms. Ayala proves to her clients that it is beneficial to act fast and that utilizing an alternative method of litigation handling will result in saving both time and money.

In lieu of an Answer, Ms. Ayala interposed a Motion to Dismiss upon the basis that her clients were immune from liability based upon the Workers’ Compensation law.  The Third-Party Plaintiff/dog owner initially argued that the defendant, a Home Health Aide, improperly released the dog from the basement against the owner’s directives, which, in turn caused the dog to attack the Aide’s supervisor who had gone outside to provide supplies to the Aide.

However, when confronted with deposition testimony that the Third-Party Plaintiff herself admitted that she had opened the basement door, the Third-Party Plaintiff then claimed that the Aide’s act of opening the front door to the home fell outside of the scope of her employment, and therefore prevented the Aide from obtaining the benefit of the workers’ compensation bar. In reply, Ms. Ayala noted that the Aide opened the front door in order to retrieve the supplies needed for the client, which was clearly “within the scope of employment”. The Judge agreed and the matter was dismissed against the firm’s client.

In a matter tried before Judge Rouse in Supreme Court, Suffolk County on July 25th, 2017, Matthew J. Vitucci obtained a defense verdict on behalf of a bus corporation in a trip and fall case.

On October 11, 2005, the plaintiff, a bus driver for third party defendant tripped and fell over a raised “ball” of asphalt in a parking facility in Smithtown New York. As a result of the fall, the plaintiff sustained a fractured clavicle, a labral tear and a rotator cuff tear that was treated via multiple arthroscopic procedures. Plaintiff eventually developed a “frozen shoulder” and claimed she was unable to work as a bus driver. Plaintiff sought a recovery of $500,000.

Plaintiff claimed that both the defendant, landlord of the bus facility and the third party defendant bore liability for either creating the defect in the parking lot or for allowing it to exist for so long a period of time, and that the defendant and third party defendant had notice of the condition and should be held liable for failing to correct it.

After Mr. Vitucci’s closing statements and within one hour, the jury returned a verdict in favor of GVK’s clients, stating that neither defendant nor third party defendant had notice of the defect’s existence.