On May 4, 2017, Kenneth S. Merber obtained a defense verdict in a New York Labor Law/Premises Liability case brought against an automotive garage after a 4-day trial in the Supreme Court of the State of New York, County of Westchester.
The case was tried before The Hon. David F. Everett. The plaintiff alleged that the firm’s client was negligent and violated New York’s Labor Law claiming the work site was inadequately constructed, equipped, arranged, operated and conducted. Plaintiff further claimed defendants failed to provide him with adequate protection and negligently instructed his employees creating the allegedly perilous conditions that caused the accident.
During the trial, Mr. Merber successfully sought a ruling precluding Plaintiff’s liability expert based upon his arguments that the opinions lacked general acceptance under the United States Supreme Court decision of Frye v. U.S. and procedural defects in Plaintiff’s expert disclosure served pursuant to New York’s Court’s Rules. Plaintiff alleged that he sustained catastrophic permanent injuries including a traumatic brain injury, post-concussion syndrome, dysautonomia and neurologic dysfunction as a result of a work place accident in which he struck his head. Plaintiff continuously treated for his claimed injuries from the time of his accident in 2012 through the date of the verdict almost 5 years later. He claimed more than $200,000 in medical expenses and sought a 7-figure recovery.
Gallo Vitucci Klar LLP is proud to announce that Heather Ragone has been named one out of only three Transportation and Maritime attorneys in the New York Metro area, selected to the 2016 Top Women Super Lawyer list. This is an exclusive list, recognizing no more than five percent of attorneys in the state. Super Lawyers is a research driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.
For more information about Heather’s achievement click here.
In a matter tried before Judge Arlene Bluth of the Supreme Court, New York County, Mr. Vitucci obtained a defense verdict on behalf of a driver and bus company against claims brought by a commercial truck driver, that at the time of the accident, was parked near the intersection of 55th and 11th Avenue in New York City. The case was disputed on both liability and damages. In view of the complicated damages picture, including several prior accidents which resulted in injuries to various body parts and the possibility of a very lengthy trial, the Court presented the option to bifurcate the trial. The parties agreed and the case proceeded to trial on liability only. Plaintiff’s pretrial settlement demand was $450,000. Plaintiff claimed injuries to his shoulder, neck and back and underwent surgery.
The matter arose from an accident that occurred on June 1, 2011 at the intersection of 11th Avenue and 55th Street in Manhattan. Defendant bus driver had dropped off student passengers for a day trip in Manhattan prior to the accident. On his way to pick up the passengers, proceeding southbound in the right-hand lane past plaintiff’s parked truck, the right rear of the defendant’s bus made contact with plaintiff’s driver’s side door.
It was the testimony of plaintiff that upon parking his vehicle, he had opened his driver side door of his truck to obtain a glove. He further testified that prior to opening the door, he had looked towards the southbound traffic coming towards him to make sure that conditions were safe. It was further the testimony of plaintiff that the door had been opened for roughly 45 seconds before the right rear of defendant’s bus, which was proceeding southbound, made contact to plaintiff’s door. Plaintiff had testified that he had looked for oncoming traffic before opening the door and at that time, did not see our client’s bus on the roadway.
Upon cross-examination during trial, plaintiff admitted that opening a door into traffic on the roadway was unsafe. He also admitted that the rules applicable to commercial drivers specifically prohibited opening the door of a truck into the traveled portion of the roadway when it was not safe to do so and that such conduct, if it occurred, was in fact a violation of the New York State Vehicle and Traffic Law. Following a 10-minute deliberation, the jury issued a verdict in favor of the defense.
Woodbury, Long Island – Gallo Vitucci Klar LLP is pleased to announce the opening of its Long Island office located at 100 Crossways Park West, Woodbury, New York. Adding to GVK’s current offices located in New York, New Jersey and Westchester, this is the firm’s 4th office location. The new office in Long Island comprises of approximately 8,000 square feet of modern office space and is headed by Senior Partner, Matthew J. Vitucci. This new office will accommodate the needs of Gallo Vitucci Klar’s rapidly growing clientele and expanding roster of attorneys on Long Island and throughout Queens. As we continue to expand our roots in New York and New Jersey, we continue to provide our clients with the experience, skill, and creative approach they have come to expect from Gallo Vitucci Klar LLP.
Since it’s opening in late August, Mr. Vitucci has been joined by 11 attorneys and counting. The opening of a Long Island office is part of the firm’s long term strategic growth plan to maximize coverage of the tri-state area by staffing its offices with the most accomplished attorneys in close proximity to their clients, their matters and the Courts.
In the past 5 years alone, Gallo Vitucci Klar has doubled in size and locations, from 30 attorneys in 2 offices to now over 60 attorneys located in 4 different offices across New York and New Jersey. We are excited for this continued growth and the firm is looking forward to the future. We thank our clients for their continued and unwavering support throughout the years and look forward to many more years of growth together.
On September 16, 2016, after a two week trial in the Supreme Court of the State of New York, Westchester County, Kenneth Merber obtained a defense verdict on behalf of an international property owner/property management company and one of the largest maintenance companies in the United States. The case involved an alleged slip and fall accident. The plaintiff was a 42 year old man who was employed by a tenant of the building. He fell shortly after a cleaning woman mopped the floor of an employee break room. The claimant alleged that the defendants created a dangerous and defective condition and failed to provide adequate warnings. Defendants denied liability for the accident. Plaintiff alleged that he sustained numerous injuries including lower extremity fractures, tendon and ligament tears, Reflex Sympathetic Dystrophy (RSD)/ Complex Regional Pain Syndrome (CRPS) and acute and chronic injuries in his lumbar spine. Plaintiff claimed that he is completely disabled and unemployable. He has been actively treating for his medical conditions and currently ambulates with a cane and a CAM boot when not in a wheelchair. Plaintiff and his physician testified that Plaintiff has sought an amputation of his affected limb to limit or end his pain. Plaintiff’s settlement demand at the commencement of the trial was $10 million. The demand was reduced to $3 million during the trial but never lower. The jury returned a unanimous defense verdict in favor of Mr. Merber’s clients in less than 30 minutes.
Gallo Vitucci Klar is excited to announce that our partner, Kenneth J. Merber, is scheduled to compete in this year’s “Chopped for CHOP” event organized by Magna Legal Services at the Borgata Hotel Casino & Spa on November 9th & 10th. Kenneth will compete with other trial attorneys to win up to $10,000 in donations made in Gallo Vitucci Klar’s name to The Children’s Hospital of Pennsylvania. Click here for more information.
New Jersey’s highest court issues important insurance coverage decision in Cypress Point Condominium Association Inc. v. Adria Towers LLC, Case Number 076348, affirming that a CGL policy provides coverage for consequential damages resulting from a subcontractor’s defective construction work.
On August 4, 2016, the New Jersey Supreme Court affirmed that a Commercial General Liability (CGL) policy covers damages resulting from defective construction work performed by a subcontractor. The New Jersey Supreme Court held that the lower court misapplied the leading New Jersey decision on this issue, Weedo v. Stone-E-Brick, 81 N.J. 233 (1979), where the lower court held that a CGL policy does not cover consequential damages resulting from defective construction work performed by a subcontractor.
The Cypress Point lawsuit arises out of the construction of the Cypress Point condominium complex in Hoboken, New Jersey. Adria Towers, LLC, the construction project developer and general contractor, hired various subcontractors to perform the construction work. Adria Towers, LLC procured four CGL policies with standard CGL language, providing coverage for “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ . . . caused by an ‘occurrence’ that takes place in the ‘coverage territory’ . . . [and] . . . occurs during the policy period.”
The term “property damage” was defined by the policies as including “physical injury to tangible property including all resulting loss of use of that property.” An “occurrence” was defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policies contained an exclusion for “Damage to Your Work,” which excludes coverage for “property damage” to “your work” arising out of it or any part of it and included in the ‘products-completed operations hazard.'” An exception to the Damage to Your Work exclusion provided that it does not apply if the damaged work or the work out of which the damage arises was performed on the insured’s behalf by a subcontractor.
Following the construction of the condominium complex, residents complained of roof leaks and water infiltration in their apartments and in common areas due to rain. Cypress Point filed a lawsuit against Adria Towers, LLC and its subcontractors, alleging defective work and claiming consequential damages. The trial court held that pursuant to the Supreme Court’s holding in Weedo, no coverage was afforded to Cypress Point under its CGL policies for consequential damages. The Appellate Division reversed, holding that consequential damages caused by the subcontractors’ defective work constitutes “property damage,” because it is “physical injury to tangible property.” In addition, rain seeping into the complex as a result of the defective construction work constitutes an “accidental occurrence” as defined by the policies since it is an unexpected or unintended “continuous or repeated exposure to substantially the same general harmful conditions.” Furthermore, the Damage to Your Work exception to the exclusion for work performed by subcontractors applied. The Appellate Division noted that the lower court misapplied Weedo because: 1) Weedo involved replacement costs, not consequential damages; and 2) the policy at issue in Weedo did not include the subcontractor exception to the Damage to Your Work exclusion.
The New Jersey Supreme Court affirmed the Appellate Division’s decision, holding that consequential damages resulting from the rain infiltration constitutes property damage as defined by Adria Towers’ CGL policies. Additionally, the court held that an “accidental” occurrence includes unintended and unexpected harm caused by negligent conduct. Furthermore, the court held that the subcontractor exception to the Damage to Your Work exclusion applied. It should be noted that the Cypress Point decision did not reverse the holding in Weedo that replacement costs are not covered under a CGL policy.
The Cypress Point decision follows a recent trend in other jurisdictions which have recognized the misapplication of Weedo, affirming that consequential damages from a subcontractor’s defective work is covered by a CGL policy. As a result of this decision, insurers should be made aware of the potential exposure presented to them for liability for damages due to a subcontractor’s faulty or defective work.
Gallo Vitucci Klar is pleased to announce the addition of three new partners to the firm. Bryan Schwartz, Andrea Silk and Robyn Silvestri, were previously partners at the Manhattan office of Lewis Brisbois Bisgaard & Smith LLP.
Bryan has over 15 years of experience defending transportation and complex litigation matters and primarily focuses on cases involving tractor trailers, heavy trucks, busses, ambulances and paratransit vehicles. He is a member of the Gallo Vitucci Klar’s National Emergency Response Team. He has responded to over 450 serious accidents to ensure that the client is fully protected from the moment an accident occurs. Bryan will continue to focus his practice in transportation related matters in both State and Federal Courts. Bryan can be contacted at bschwartz@gvlaw.com.
Andrea focuses on general liability, as well as the wind down of run off programs and large scale settlement projects. Andrea has reviewed, monitored and provided her clients with action plans for over 12,000 claims. She provides clients with a more cost effective way to manage large books of business by expanding on the traditional attorney – client relationship by acting as an extension of the client rather than just defense counsel. She advises clients on issues including adequate loss and expense reserves, loss analysis, cost effective litigation management and the implementation of proven resolution techniques from the inception of the claim. Andrea’s general liability practice focuses on premises cases, hospitality, dram shop litigation, automobile defense, subrogation and property damage. Andrea can be contacted at asilk@gvlaw.com.
Robyn focuses on insurance coverage and bad faith claims. She represents insurers in declaratory judgment actions arising out of insurance coverage disputes in State and Federal Court. She also prepares written opinions on coverage issues arising under commercial general liability, professional liability, directors and officers liability, and excess and umbrella insurance policies. She analyzes insurance tender issues faced by insurers and provides responses to tenders on behalf of insurers. Insurers often ask Robyn for guidance on trending and developing insurance coverage issues. Robyn also regularly defends general tort liability claims in State and Federal Court, including premises liability, Labor Law, Dram Shop, and automobile liability claims. Robyn can be contacted at rsilvestri@gvlaw.com.
We are fortunate to have three super talented, well-respected lawyers joining GVK. Bryan, Andrea and Robyn strengthen GVK’s ability to continue to provide our clients with the highest level of legal services. With these latest additions, GVK continues its growth to 60 attorneys amongst four offices located in New York City, New Jersey, Westchester and Long Island (opening in September 2016).
On June 14, 2016, James V. Deegan successfully obtained a defense verdict after a 5 day jury trial and only 3 hours of deliberation in the Supreme Court, Bronx County before Judge Faviola Soto. The case of Schneider v. Isabella City Carting, et al., arose out of a two vehicle collision that occurred on June 14th, 2010, on 138th Street when plaintiff attempted a left turn in front of defendant in order to enter the Major Deegan Expressway. Plaintiff claimed to have had a green turning arrow. Defendant, Adam Hernandez, operating a sanitation truck owned by Isabella City Carting, claimed he had a green light in his favor and that plaintiff jumped the light in front of his garbage truck. The trial was bifurcated. Plaintiff had previously obtained a favorable liability verdict with a 55% finding of liability against defendants. The same jury returned to participate in the damages phase of the trial.
The critical issues at trial were whether plaintiff’s neck fusion surgery, nerve damage limiting use of his arm, and the additional injuries to his shoulder and back constituted a serious injury pursuant to the New York Insurance law. The jury had to answer whether plaintiff sustained a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system and if so, the extent of any past and future damages to be awarded plaintiff while also considering the need for future surgeries and treatment.
During closing arguments, plaintiff requested $6.3 Million; $3 Million of which was for past pain and suffering, $3 Million for future pain and suffering, and $300,000.00 for future surgery and treatment. The jury returned a defense verdict determining that plaintiff did not sustain either a consequential permanent limitation or a significant limitation of a body part or function stemming from the accident.
Plaintiff alleged the accident caused injury to his neck, arm, shoulder and back, including a traumatic disc herniation to the C5-C6 disc with spinal compression and confirmed radiculopathy down his right shoulder and arm and into his right hand, with nerve damage stemming from the compression on the spinal cord. These injuries, plaintiff offered, resulted in a discectomy and fusion surgery with hardware installed, with limited and restricted use of his right non-dominate arm. Plaintiff offered the expert testimony of his initial orthopedic surgeon and his spine surgeon, both of whom testified that the accident caused the traumatic herniation that required fusion surgery and nerve damage resulting in limited use of his right arm.
Mr. Deegan convinced the jury that plaintiff suffered from a pre-existing degenerative spinal condition unrelated to the accident and that the accident did not cause a traumatic rupture of the C5-C6 disc. Mr. Deegan conceded to the jury that plaintiff sustained a whiplash injury but argued such injury resolved over 4-6 months time. Mr. Deegan also proved that plaintiff’s activities post accident were basically unchanged from his pre-accident activities.
Defendants relied upon expert testimony of an orthopedist, neurologist, and radiologist, all of whom opined that plaintiff did not suffer a herniated disc from the accident, merely soft tissue injuries that fully resolved within months of the accident, and that the fusion surgery and nerve damage was a result of the naturally progressing degenerative disc disease rather than a trauma from the accident.
GVK Partner Daniel Mevorach and Associate Thomas Vu obtained summary judgment dismissing Plaintiff’s Complaint, in its entirety, on behalf of our client Consolidated Edison Company of New York (“Con Ed”) in a very high exposure construction accident matter pending trial before Justice Carmen Velasquez in the Supreme Court, Queens County.
The Plaintiff was a 32 year-old union excavator operator employed at a project for reconstruction of a timber bulkhead retaining wall at the Con Ed Power Plant in Astoria, New York. Plaintiff was operating the excavator to remove timber cribbing from the shoreline. When he drove the excavator along the shoreline on some of the wet timbers facing perpendicular to the shore line, the excavator lost traction and slid into the water, with Plaintiff narrowly avoiding drowning while trapped inside the submerging excavator. As a result of his incident, Plaintiff alleged orthopedic injuries to his back and neck, and more significantly, post-traumatic stress disorder (“PTSD”) due to his near death experience. Despite his young age and salary, Plaintiff had not returned to work due to the ensuing psychological trauma from his incident.
Plaintiff’s counsel issued a settlement demand of $12 million based upon findings from a team of expert witnesses comprising a psychologist, psychiatrist, neurologist, economist, vocational rehabilitation expert, and site safety consultant. Plaintiff’s economist was prepared to present extensive evidence that due to Plaintiff’s young age, high-paying occupation, and work-life expectancy, his total economic losses were in the range of $11.5 million – $17 million.
We expediently marshaled an evidentiary record, including depositions of non-parties, to argue that Plaintiff’s incident was wholly attributed to his negligently operating the excavator over the timber pile that he excavated but failed to clear, and that Con Ed was not negligent and did not violate Labor Law sections §200, §240(1) or §241(6) in causing Plaintiff’s incident. In granting summary judgment to our client, the Court agreed with our position that Plaintiff’s incident did not implicate §240(1) since his incident did not involve any elevation-related hazard that any protective device under the provision would have prevented. Of further significance, the Court agreed with our arguments in defense of Plaintiff’s numerous §241(6) and industrial code allegations, which included those relating to the meaning of “trenching and area-type excavation” activity, whether Plaintiff was properly supervised in the performance of his task, whether Con Ed permitted his operation of the machine upon unstable terrain that would cause dangerous tilting, and the adequacy and power capacity of the excavator that Plaintiff was hired to operate.
After consulting with our client, we found an expert with years of experience in the field of power equipment, who helped us to clarify for the Court the technical and somewhat obscure provisions of the Industrial Code, and worked closely with him to develop the arguments the Court ultimately adopted in dismissing every code violation cited by Plaintiff.
This case goes to show that with attention to the evidentiary record, and close assistance of a qualified expert, Labor Law 241 (6) cases can be defensible.
