Over the weekend, Team GVK participated in the Tunnel to Towers 5k Run & Walk!
The Tunnel to Towers 5k Run & Walk in New York City is held each year on the last Sunday of September. The event symbolizes Stephen Siller’s final footsteps from the foot of the Battery Tunnel to the Twin Towers.
On September 11, 2001, off-duty FDNY firefighter Stephen Siller heard about the Twin Towers’ attack and immediately rushed to the Brooklyn Battery Tunnel. Despite its closure to vehicles, Siller put on 60 pounds of firefighting gear and made his way through the tunnel on foot; demonstrating unwavering dedication to duty and fellow citizens. Tragically, Stephen sacrificed his life in service, leaving behind a legacy of bravery in the face of adversity.
In addition to Siller, this event also pays homage to the 343 FDNY firefighters, law enforcement officers, and thousands of civilians who lost their lives on September 11, 2001.
Team GVK raised over $4,000 for the Tunnel to Towers Foundation!
We were very excited to be a part of the Tunnel to Towers 5k, and we look forward to participating again next year!
Gallo Vitucci Klar LLP is thrilled to announce that 12 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2023! These honors recognize the top legal professionals in their respective fields who have demonstrated excellence in their practice. Only 5% of lawyers in New York state are selected to be Super Lawyers and only 2.5% of lawyers are selected to be Rising Stars each year, yet many of our attorneys have been named to the list year after year.
2023 Rising Stars
The GVK 2023 Rising Stars include, Partner, Brandon Weinstein was selected for his second consecutive year for civil litigation defense. Partner, Patrick W. Kenny was selected for personal injury defense. Associate, Ancilla Dias-Pinto was selected for her second consecutive year for personal injury defense. Associate, Melissa D. Patzelt-Russo was selected for personal injury defense. Partner, Christopher L. Parisi was selected for his third consecutive year in New Jersey for construction litigation.
2023 Super Lawyers
In addition to these four Rising Stars, Senior Partners; Howard P. Klar, Matthew J. Vitucci and Partners; Patrick J. Cooney, Stephen A. Hoffman, Heather C. Ragone, Bryan T. Schwartz, and Joe J. Rava and Richard Gonzalez have been named to the 2023 New York Metro Super Lawyers List.
Senior Partner, Howard P. Klar has been named a Super Lawyer for his twelfth consecutive year in civil litigation defense. Senior Partner, Matthew J. Vitucci has been named a Super Lawyer for his eleventh consecutive year in Civil litigation and Personal injury defense.
Partner, Patrick J. Cooney was selected for his third consecutive year for personal injury defense. Partner, Stephen A. Hoffman was selected for his eighth consecutive year in civil litigation defense. Partner, Heather C. Ragone was selected for her eighth consecutive year in transportation and maritime defense. Partner, Bryan T. Schwartz was selected for his third consecutive year in personal injury defense. Partner, Joe J. Rava was selected for his third consecutive year in personal injury defense. Richard Gonzalez was selected for transportation as well as maritime defense.
Gallo Vitucci Klar LLP is thrilled to announce the elevation of three remarkable attorneys C. Briggs Johnson, Jacqueline S. Kim, and Rozaly Cohen to the position of partner. Their exceptional contributions and commitment to the firm’s growth and success have made this promotion a fitting recognition of their achievements.
C. Briggs Johnson has been with the firm since March 2021. Briggs is currently the Chair of the firm’s Appellate Practice Group. Brigg’s responsibilities encompass navigating complex and dispositive motions, trial motions, and perfecting appeals across the intricate trial and appellate courts of New York and New Jersey, as well as federal courts. His expertise includes legal research, drafting dispositive motions and appellate briefs, especially in cases involving high exposure and complex legal terrain.
Jacqueline S. Kim has been with the firm since June 2019. Jacqueline Kim is a legal professional with over 25 years of experience in general liability, including both plaintiff and insurance defense litigation. Jacqueline’s practice encompasses a diverse range of cases, including the handling of complex premises liability, automobile liability, labor law, and construction accident claims. Prior to joining the firm, Jacqueline served as in-house trial counsel at two major insurance carriers.
Rozaly Cohen has been with the firm since March 2012. She defends clients across the realms of general liability, premises liability, construction, insurance coverage, and automobile liability in both New Jersey and New York. Her approach consistently secures favorable outcomes for clients facing complex legal challenges.
Gallo Vitucci Klar LLP’s commitment to excellence is reflected in the elevation of C. Briggs Johnson, Jacqueline S. Kim, and Rozaly Cohen to partnership positions! As Gallo Vitucci Klar LLP continues to navigate the evolving legal landscape, the inclusion of these accomplished attorneys as partners reinforces the firm’s capabilities to best serve our clients.
On July 19, 2023, GVK obtained dismissal of plaintiffs’ legal malpractice claim and fourteen (14) related causes of action against GVK’s client. Plaintiff retained GVK’s client to represent her in a contentious matrimonial action which spanned several years. During the matrimonial action, GVK’s client’s diligent representation of the plaintiff resulted in a Parenting Agreement and two Settlement Stipulations placed on the record. Despite a favorable result obtained by GVK’s client in the underlying action, plaintiff brought suit against her attorney alleging a myriad of wrongdoings, only after GVK’s client brought a separate action to collect on the legal fees duly owed to her.
GVK successfully argued that plaintiff could not meet the requirements for a legal malpractice claim since, during her allocution in connection with the earlier Settlement, plaintiff: Acknowledged that the terms of the stipulation had been discussed and negotiated over a period of time understood the terms of the settlement in their entirety, believed the settlement was “fair and reasonable” and stated that she was satisfied with the services of her attorney. Additionally, GVK successfully argued that the client’s representation of plaintiff in the underlying action was found to be appropriate (as were her collections efforts for legal fees) and that prior sanctions against her did not amount to malpractice.
Justice Bannon in the Supreme Court, New York County rejected plaintiffs’ arguments and agreed with GVK that the evidence in the underlying matrimonial action clearly contradicted plaintiff’s legal malpractice claim. With respect to the Judiciary Law § 487 claim, the Court agreed with GVK’s position that the plaintiff failed to allege any intent to deceive on GVK’s client’s part and instead, the Court found that GVK’s client “zealously” represented the plaintiff in the underlying proceedings over several years, as demonstrated in plaintiff’s testimony in the underlying action and by virtue of plaintiff’s referral of her friends to GVK’s client.
In Scurry v. New York City Hous. Auth., 39 N.Y.3d 443 (2023), the Court of Appeals recently decided two separate cases that expanded the liability of defendants in negligent security actions arising out of the deliberate, intentional, or “targeted” attacks of third parties.
Previously, the Appellate Division, First Department uniformly held that a “targeted” attack by a third-party precluded a liability finding against a landlord-defendant in a negligent security action. That is no longer the case.
Our important take aways: (1) that a “targeted” attack does not absolve a landlord from liability in a negligent security action; and (2) that a landlord, tenant, or any other occupier of real property needs to ensure – on a daily basis – that they have properly functioning locks to all the entry points of their building or establishment.
The Court of Appeals made it crystal clear in Scurry that if there is any evidence that such locks are malfunctioning, or that they do not exist at all, a defendant can be liable to a plaintiff in a negligent security action even if plaintiff was injured due to an intentional or premediated attack by a third party.
Although the Court cautioned that “the sophisticated nature of an attack may in some cases be relevant to the proximate cause analysis, the fact that an attack was ‘targeted’ does not sever the casual chain between a landlord’s negligence and a plaintiff’s injuries as a matter of law.” Scurry, 39 N.Y.3d 443.
In both cases, the Court noted that “the risk created by the nonfunctioning door locks-that intruders would gain access to the building and harm residents-is exactly the “risk that came to fruition.” Id., quoting, Hain v. Jamison, 28 N.Y.3d 524, 533 (2016), citing, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 317 (1980).
In other words, the Court in Scurry held that the question of whether the attacks on the plaintiffs were foreseeable – in light of the questions regarding the malfunctioning door locks or the unlocked doors, when weighed against the intentional conduct of the assailants – was a question of fact for the jury to decide.
Yesterday evening, the NY State Senate voted on and passed the amended “Grieving Families Act” bill, which was reintroduced and passed in the Assembly last week (see our previous alert on the matter here).
Having now passed both houses of the state legislature, the bill is expected to be formally sent to the Governor’s office soon, which will trigger a 10-day deadline for Governor Hochul to sign it into law, veto or pass it with a change memo listing requested changes for the legislature to incorporate and vote on. The Times Union reports that notwithstanding modifications to the original bill, this will be its second review by the Governor in 6 months (she vetoed the original bill in Jan. 2023) and “it is unclear whether [Governor] Hochul’s position on the measure has changed. In a stock statement, [Governor] Hochul’s spokesman John Lindsay said the [G]overnor will review any measure that passes both houses.” It further reports that State Sen. Brad Hoylman-Sigal who re-introduced the bill stated that he has had informal discussions with the Governor’s staff and is optimistic that it has a “better chance than ever” of passage.
The Times Union is of course referring to the modifications made to the original bill to address the Governor and industry groups’ concerns about the financial impact of the proposed amendments to NY’s wrongful death statute. As we reported yesterday, in vetoing the bill in Jan. 2023, the Governor noted her concerns over the financial impact of increased litigation, health and insurance costs on lower-income families, small businesses, health care workers and hospitals. Most importantly, she called for evaluation of the financial impact of these changes, including consideration of NY’s constitutional prohibition against limits on jury damage verdicts, acknowledging that states with more expansive wrongful death statutes also have laws capping damage verdicts. As we noted in our previous alert, there is no indication in recent reporting of the bill that any of the proposed amendments are based on the “serious evaluation and study of the Act’s financial impact” on businesses, hospitals and municipalities that the Governor called for.
We will continue to monitor the bill’s consideration by the Governor. Should you have any questions, please do not hesitate to contact Howard Klar or William Parra.
A modified version of the Grieving Families Act (the “Act”) bill was recently reintroduced in the NY State Assembly and Senate. On June 1, 2023, the State Assembly passed Bill A6698. It will now proceed to the State Senate for a vote, although when is unclear. If the Senate passes the bill, this latest attempt to expand the scope of New York’s wrongful death statute will once again be presented to Governor Hochul for her signature and enactment into law or veto.
Last year’s attempt to amend Estates, Powers and Trusts Law (“EPTL”) §§ 5-4.1, 4.3, 4.4 and 4.6 sought to expand damages recoverable in NY wrongful death suits from “pecuniary losses” (i.e., a decedent’s future lost earnings), a decedent’s pre-death conscious pain and suffering and distributees’ loss of support, parental guidance/assistance and inheritance, to now include surviving family members’ right to recover for their own “emotional anguish.” That bill also sought to extend the statute of limitations from 2 to 3.5 years, expand the class of claimants to undefined “close family members,” and to apply retroactively to existing lawsuits.
Governor Hochul vetoed the original version of the bill earlier this year. While voicing support for such changes, she noted reservations over the scope of the proposed expansion of the claimant class; the financial impact of increased litigation costs and new claimants interjecting themselves into pending cases; increased health and insurance costs on lower-income families, small businesses, health care workers and hospitals, and other “significant unintended consequences.” She called for evaluation of the financial impact of these changes, including consideration of NY’s constitutional prohibition against limits on jury damage verdicts, acknowledging that states with more expansive wrongful death statutes also have laws capping damage verdicts. The version of the bill that passed attempts to address the Governor’s concerns by cutting the expansion of the statute of limitations from 2 to 3 years (rather than 3.5), and by expressly limiting claimants to decedents’ spouse/partner, children/grandchildren, parents/grandparents/guardians and siblings. This bill is also silent on its retroactive effect, indicating that it would not be so. Significantly, there is no indication that any of the proposed changes are based on the “serious evaluation and study of the Act’s financial impact” on businesses, hospitals and municipalities, that the Governor called for in vetoing the original bill.
We will continue to monitor the bill’s progress through the legislative process. Should you have any questions, please do not hesitate to contact Howard Klar or William Parra.
In Grady v. Chenango Val. Cent. School Dist., 2023 NY Slip Op 02142 (Apr. 27, 2023), the Court of appeals recently decided two cases and reaffirmed that the “primary assumption of the risk doctrine” (a doctrine that prevents a plaintiff from recovering damages in a personal injury lawsuit altogether) is still “applicable only in a narrow set of circumstances, in recognition of the fact that ‘athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks.’” Id., quoting, Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395 (2010).
Here are the two important takeaways from these cases: (1) that the assumption of the risk doctrine is only rarely applicable in personal injury lawsuits in New York; and (2) the facts always and truly matter. If a plaintiff injures him or herself in a recreational or sporting activity for a risk that is inherently involved with participating in that sport or activity (falling off a horse, or an errant baseball throw, for example), then a plaintiff’s action will likely fail. However, if a plaintiff injures him or herself for a risk that is not normal, logical, or inherent in that sport or activity – if the risk is unique, or heightened, or unrelated to that sport or activity – then a plaintiff will likely still be able to recover damages in a personal injury lawsuit.
The Court in Grady further explained that plaintiff’s action will be barred when he or she “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” inherent in the relevant athletic or recreational activity. Grady, 2023 NY Slip Op 02142, quoting, Custodi v. Town of Amherst, 20 N.Y.3d 83, 88 (2012). By contrast, a plaintiff is not “deemed to have assumed ‘risks that are concealed or unreasonably enhanced’” by such activities. Grady, 2023 NY Slip Op 02142, quoting, Custodi, 20 N.Y.3d at 88.
Applying these principles, the Court of Appeals decided two different cases. In Secky v. New Paltz Central School District, the Court of Appeals affirmed the dismissal of plaintiff’s complaint where he injured his shoulder during a basketball practice drill where the players were competing to retrieve a rebound. There, plaintiff’s coach explained that the boundary lines of the court would not apply during the drill, and that only major fouls would be called; and the bleachers stationed near the court were retracted. Plaintiff injured himself while pursuing a loose ball towards the bleachers when another player collided with him, causing plaintiff to fall into the bleachers and injure his right shoulder. The complaint was deemed meritless because the Court of Appeals had already held that “the risk of collision [with an open and obvious item near a basketball court]” is an inherent risk in playing basketball. Grady, 2023 NY Slip Op 02142, quoting, Trevett v. City of Little Falls, 6 N.Y.3d 884, 885 (2006).
By contrast, in Grady v. Chenango Valley Central School District, the Court found issues of fact regarding whether plaintiff assumed the risk of his injury while participating in a baseball drill. The drill involved baseballs to be thrown from two parts of the infield to two players in close proximity to each other in the same area at first base. A protective screen was set up to try and protect both players near first base. However, an errant baseball bypassed one of the first baseman and the screen and hit the other first basemen, causing serious injuries. The Court found issues of fact because the drill – which involved two first baseman close to each other and two baseballs being thrown in their direction (of course, there is usually only one baseball and first basemen in a normal baseball game) – “‘was unique and created a dangerous condition over and above the usual dangers that are inherent’ in baseball.” Grady, 2023 NY Slip Op 02142, quoting, Owen v. R.J.S. Safety Equip., Inc., 79 N.Y.2d 967, 970 (1992).
On May 8, 2023, a Brooklyn jury returned a defense verdict following a one-week trial handled by Matthew Vitucci. The trial involved the claim by Plaintiff, Ausencio Aguirre Martinez, that he slipped and fell from a defectively constructed and inadequately maintained service entry stairway located between the lobby and basement of a building located 1056 5th Avenue, in Manhattan.
At trial, counsel for Plaintiff presented testimony, photographs and video of the incident which showed that Plaintiff, an appliance deliveryman, attempted to deliver, by himself, a 450-pound washing machine down the 22 service entry steps. He lost his balance and fell from the midpoint of the staircase.
Plaintiff claimed to have sustained various and severe injuries from the fall including a fracture dislocation of the right shoulder and lumbar herniations.
Plaintiff claimed that his fall was occasioned by a buildup of water on the steps; he claimed that melting snow from a storm, days earlier, led to melting and that wetness on the sidewalks surrounding the building was tracked into the service area stairway leading to a hazardous condition. Plaintiff alleged that the Defendants failed to inspect, clean, or maintain the steps. It was the further claim of plaintiff that the subject stairway contained treads of non-uniform height which contributed to the fall.
On cross examination, it was highlighted that plaintiff worked with a partner who was available to assist with the delivery of the washing machine. The co-worker admitted on the stand that plaintiff’s taking a heavy piece of equipment down the stairway by himself was dangerous given the number of stairs.
Plaintiff produced an expert to opine on the various allegations presented; the expert’s testimony was limited following a successful challenge via various motions in limine which pointed out that the expert’s conclusions were not supported by any applicable building codes.
Following closing arguments, the jury returned a verdict for the defense after brief deliberations.
Congratulations to Pat Cooney. Following a three week trial in Erie County, New York, the jury returned a verdict finding that our client, Kelvin Sharpe, a bus operator for Pine-Hills/Trailways, was not responsible nor did he contribute to the happening of the accident.
Seven of the passengers brought suit against our clients with combined settlement demands of over 6M. A “Litigation Coordination” order directed liability be tried in Erie County (1st suit filed). Two of the damages cases which are venued in Supreme Court, Bronx County will now be tried against the tractor trailer driver and his employer only.
The lawsuit arose from a 3 vehicle accident occurring at 2:30 a.m., on November 6th2014, on I81, just south of Syracuse New York. Before the accident, defendant Tarbell (25/50 policy) left his car abandoned in the left passing lane in a perpendicular manner across the lane. Codefendant, a tractor trailer driver, who was traveling in the right lane before the accident admitted to the police that the car was “practically invisible” and you could not see it before “you were on top of it”.
The tractor trailer driver pulled over to the right to see if anyone was in the car. Unfortunately he pulled over in an area where the shoulder tapered because there was a bridge ahead, leaving his trailer “half in and half off” the right travel lane. As the driver was exiting his cab, he saw the bus and another uninvolved tractor trailer approaching. He realized there was going to be an accident.
The bus struck the Tarbell vehicle at 65 mph., throwing the vehicle 100’ down the highway. It came to a rest on the left median. Kelvin remembers little to nothing about the accident. With expert testimony, use of police photos, DDEC data, ECM data and other investigation we were able to reconstruct the accident. Kelvin made an evasive maneuver to the right, gradually moving across the right lane (to prevent bus from tipping over), struck the guide rail and regained some control by turning back to the left. Unfortunately, Mr. Sharpe was not able to ride the guide rail and stop the bus because the tractor trailer was parked on the roadway. The driver of tractor trailer had tried to move, but was not able. Much of the testimony which tried to establish the tractor was on the shoulder was easily refuted with introduction of 2 photos showing the damage to the bus and the tractor trailer. The trailer sustained heavy damage to its right side. The left front of the bus (driver’s compartment) sustained massive damage. The off-setting damage clearly established the tractor trailer was in the right lane when it was struck by the bus.
Allegations against Mr. Sharpe included reckless driving, speeding, failure to break and failure to use high beams. The 2nd tractor trailer operator, who escaped the accident, provided favorable testimony. The jury deliberated for 2.5 hours finding the Tarbell vehicle 70% negligent and the tractor trailer 30% negligent.
