Following a two week trial, GVK Partner, Patrick J. Cooney, obtained a defense verdict in Supreme Court, Queens County before the Hon. Darrell Gavrin on behalf of our client Con Ed, the sole defendant. The accident occurred when the 40,000 pound excavator plaintiff was operating, slid into a creek and began to sink before plaintiff could escape. Plaintiff alleged lumbar and cervical herniations, as well severe PTSD because of the the incident.

Plaintiff brought a NY State Labor Law action against Con Ed, alleging a failure to provide a safe place to work and failing to supervise the means and methods of plaintiff’s work. Specific Code sections under LL241(6), the Industrial Code, were submitted to the jury for consideration. The first section cited Con Ed’s alleged failure to provide a spotter. The second, failure to provide secure footing for the excavator and the third section alleged a failure to properly shore the excavation. On behalf of Con Ed, Pat argued that a spotter was not required for the work being performed and the use of spotter in an area where the boom of an excavator could swing 360 degrees coupled with the fact that the excavator was on unsecured cribbing weighing hundreds of pounds made the use of a spotter too dangerous. Pat also maintained that the excavator should have been operated in a perpendicular direction to the creek so as to permit the plaintiff to power out when the excavator started to slide. It was further contended that there was sufficient materials available to build a platform for the excavator if the plaintiff felt the footing was unstable. Lastly, Pat argued that the accident was caused 100% by operator error in placing the excavator parallel to the creek and walking it across wet, slippery timbers. The Health and Safety Plan and the Operator’s Manual also provided that if an operator felt the area was not safe, he should not proceed until any alleged danger was corrected.

Plaintiff demanded 6.5M which was reduced to 4.5M during the trial. 500k was offered. Following a full day of deliberations, the jury found the workplace was safe and returned a defense verdict.

On March 6, 2019, Kenneth S. Merber successfully obtained summary judgment and the complete dismissal of all claims asserted against Wawa in multiple lawsuits involving serious injuries and a fatality. On August 17, 2021, the dismissals were affirmed by New Jersey’s Appellate Division finally resolving the lawsuits commenced in 2016 while obtaining decisions completely vindicating Ken’s clients.

The lawsuits arose from two motor vehicle accidents that occurred one year apart at the same location on a public roadway in front of a Wawa franchise. In both instances, a driver traveling westbound on Route 322 made an illegal left turn while attempting to enter one of the entrances to the store’s parking lot and struck a motorcycle traveling eastbound on the highway. In the first accident, the motorcycle driver was killed and his wife, a passenger, was seriously injured. In the second accident, the motorcycle driver was seriously injured. The injured parties and the estate of the decedent filed suits against Wawa, the entity that owns the convenience store and the State which owns the highway and the land on which the store’s driveway entrances are located. Plaintiffs’ claims against Wawa were predicated on their contentions that Wawa negligently designed and maintained its property and signs and thereby, caused or created hazardous conditions that resulted in multiple similar accidents. They further argued that a commercial landowner had a duty to protect its invitees and that duty may extend beyond its premises for activities from which it directly benefits. Plaintiffs argued and the Court found that it was reasonable to conclude Wawa could have received an economic benefit from drivers accessing its parking lot by making an illegal left turn from the highway.

Mr. Merber and his trial team initially successfully persuaded the Court to deny the plaintiffs’ motions to consolidate the lawsuits arguing defendants would be unfairly prejudiced by the consolidation. Ken and his team then obtained summary judgment in all lawsuits by successfully arguing that Wawa was not negligent and that the duty to maintain and control traffic on public roadways, including all signage, rested with public entities and not private property owners. Ken argued and Wawa’s experts opined that Wawa had no duty to provide signage or to take prohibitive measures to prevent motorist from violating the motor vehicle laws and/or disregarding the jug handle at the location. After obtaining summary judgment and dismissal of all claims, the plaintiffs’ appealed. Having successfully coordinated many trials and appeals together, Ken and Wawa engaged Matthew Naparty and his firm to handle the appeal. The Court’s rulings affirm the precedents that a commercial landowner has no duty to regulate or control the conditions of property it does not own.

Commentary by Krystina Maola, Esq.

The pandemic-related tolling of the statute of limitations in New York has caused great uncertainty over the interpretation of the applicable Executive Orders issued by Governor Cuomo. On June 2, 2021, the New York Appellate Division, Second Department issued a decision and order in Brash v. Richards concluding that the Executive Orders issued by Governor Andrew Cuomo constituted a true toll of filing deadlines and not a suspension of the same.  This decision represents the first binding decision relating to the Executive Orders and will likely guide the trial courts in each of the remaining appellate departments in the state.

Governor Cuomo first tolled the limitations periods on March 20, 2020, when he issued Executive Order No. 202.8, providing in pertinent part that:

“any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020…”

Executive Order No. 202.8.

Thereafter, Governor Cuomo issued a series of subsequent Executive Orders which extended the suspension or tolling period set forth in Executive Order No. 202.8 through and including November 3, 2020.  Executive Order No. 202.67.

Although the Second Department determined that the language of the Executive Orders constituted a true toll of filing deadlines (naturally including statutes of limitations), time will tell if the remaining Appellate Departments will follow suit or determine that the language was intended to be merely a suspension of deadlines.

Under the suspension framework, which the Second Department held was not applicable, the statute of limitations would have merely been suspended from March 20, 2020 through November 3, 2020.  Once the suspension was lifted, all filing deadlines that expired during the suspended period would have been delayed until the end of the suspension.  These deadlines would have subsequently expired on November 4, 2020.  Brash v. Richards, — N.Y.S.3d —, 2021 WL 2213786, 2021 N.Y. Slip. Op. 03436 (App. Div. 2d Dep’t June 2, 2021) (citing Foy v. State of New York, 71 Misc. 3d 605, 608 (Ct. Cl. February 16, 2021)).

Should the remaining appellate courts follow the holding in Brash and decide the Executive Orders were meant as a toll of filing deadlines, this would extend filing deadlines for a period of 228 days.  See McLaughlin v. Snowlift Inc. et al, 71 Misc. 3d 1226(A), 2021 WL 2173276 at *2 (N.Y. Sup. Ct. Kings C’nty 2021).  Therefore, any statute of limitations that was set to expire on November 3, 2020 (the last day the Executive Orders provided for tolling) will now expire on June 19, 2021.

Based on decisions being made by various trial courts across the state, it is likely that the Executive Orders will be read as a toll of filing deadlines, rather than a suspension, should the issue be appealed.  Nevertheless, until the Court of Appeals weighs in on the issue, litigants who filed late actions in reliance on the Executive Orders continue to be in jeopardy of their cases being dismissed based on the expiration of the statute of limitations.

For more information, please contact Krystina Maola at kmaola@gvlaw.com or by phone at the firm’s New York office at 212-683-7100.

We represent the employer in a Labor Law claim wherein the general contractor sought, inter alia, contractual indemnity from the employer.  On our motion for summary judgment in Supreme Court, Bronx County, we argued that the contract upon which the general contractor sought contractual indemnity was void as against public policy pursuant to GOL § 5-322.1. In sum, we argued the contract required our client (the employer) to indemnify the general contractor for its own negligence.  The Supreme Court denied our motion and we took an appeal. On Appeal, the Appellate Division, First Department, reversed the Supreme Court agreeing with our position and held the contractual indemnity language void.  This is a significant ruling for our client whose assets could have been at risk if contractually obligated to indemnify the remaining defendants in what may end up being a high exposure case in Supreme Court, Bronx County.

Commentary by William Parra & Corey Reichardt 

On May 3, 2021, Bill A7285 was introduced in the NY State Assembly, which would create a private right of action for policyholders and personal injury claimants to bring suit against insurers for “bad faith” or unfair claims settlement practices, such as an insurer’s unreasonable delay or refusal to settle a claim. The bill appears to apply to both first and third-party claims. This type of statute has had a significant impact on the insurance landscape in states such as Florida and California, increasing claim and litigation costs.

The latest NY bill is significantly more comprehensive than similar bills proposed in 2020-21. Given that the NY State Assembly and Senate have both been democratically controlled under a democratic Governor since 2019, a trifecta not seen since 1992 (other than 2010-11), a democratically-sponsored bill of this type has its best chance of being enacted in decades.

The bill proposes to amend provisions of the NY Ins. Law to create a private right of action against insurers by creating liability against them for a comprehensive list of reasons, including:

The bill also provides that any insured that established liability under the statute will be entitled to recover, in addition to the amount due under the policy, costs, disbursements, consequential damages and attorneys’ fees incurred in bringing suit, pre-judgment interest from the date of loss and punitive damages. The bill further provides a private right of action for injured claimants to recover similar damages, including pre-judgment interest from the time of the failure to offer a fair and reasonable settlement and punitive damages not limited to the policy limits.

The bill requires an underlying claimant to issue an insurer a written demand and the basis for the unfair settlement claim at least 30 days before filing suit. An insurer who within 30 days of receipt of this demand issues a written tender of settlement which is rejected by the claimant, may limit his exposure in a subsequent action under the statute to the settlement amount the insurer offered, if the finder of fact determines the insurer’s settlement offer was reasonable. If the trier of fact finds for the claimant, however, his recovery under the statute will be the amount of actual damages or up to 3 but not less than 2 times the actual damages, regardless of the policy limits, if the trier of fact determines the unfair claims practice was either a willful or knowing violation, or not reasonably justified and the insurer had knowledge or reason to know that the act or practice was a violation.

The bill separately requires that an insurer provide an insured or claimant with its entire claims file, within 30 days of a demand for same. Again, it is unclear whether attorney-client, attorney work product and similar privileges are intended to apply to such claims file disclosure requirements. However, the impact on the litigation process of claimants being entitled to insurer claims files upon demand are potentially game-changing.

Should any portion of this bill be enacted, it will become even more imperative for insurers to work with coverage counsel to ensure compliance with the additional statutory requirements for reservation of rights, disclaimer and other coverage position letters in situations where a disclaimer of coverage may be based on non-coverage grounds (not specifically required now), or risk incurring these new consequential and punitive damages. We will be monitoring the progress of the bill closely.

 

Gallo Vitucci Klar LLP is pleased to announce that 16 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2021. These recipients have been recognized as the top attorneys in the New York Metro area and New Jersey for 2021. 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.

2021 New York Metro Rising Stars

2021 New Jersey Rising Star

2021 New York Metro Super Lawyers

The annual Super Lawyer selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Commentary by Ryan J. Gerspach 

On April 13, 2021, New York’s Appellate Division, First Department awarded a plaintiff $20 million for past and future pain and suffering in what is believed to be the highest such award in the State’s history. Perez v. Live Nation Worldwide, 2021 N.Y. Slip Op. 02259 (1st Dep’t 2021). The four-justice panel reduced the trial court’s award of $40.6 million, which itself reduced the jury’s $85.75 million award. However, despite ultimately reducing the jury’s pain and suffering award by more than 75%, the intermediate appellate court raised the bar for such awards. The court also affirmed the jury’s award of $13.5 million for past and future medical expenses and lost wages.

Plaintiff Mark Perez was 30 years old when he was severely injured at the Jones Beach Theater while erecting signage for an upcoming concert. Perez was working on an elevated structure when a stagehand hired by Live Nation drove a forklift into the structure, causing Perez to fall to the ground below. Perez sustained a subdural hematoma, multiple skull, facial and spinal fractures, seven broken ribs, multiple hemorrhages, and a punctured and collapsed lung. Perez was airlifted to a Nassau County trauma center where he underwent emergency surgery. Put into a medically induced coma, Perez spent nearly one month on life support, intubated, reliant on a feeding tube and chest tube. Several months of inpatient occupational, recreational, and neuropsychological therapy followed, as did three more neurosurgeries.

As noted by the First Department in its opinion, Perez’s traumatic brain injury resulted in encephalomalacia, cerebral atrophy, traumatic epilepsy, chronic pain and headaches, significant cognitive defects in attention, processing speed, memory, visual perception, intellectual function and executive functions, depression, anxiety, symptoms of post-traumatic stress, and increased risk of future neurological disease. Perez is expected to undergo at least one more neurological surgery in the near future.

Although the First Department found that the trial judge’s award of $40.6 million deviated materially from what was reasonable, it nonetheless raised the ceiling of recovery for past and future pain and suffering. In its decision, the court stressed the permanent nature of Perez’s neurological injuries in determining that $15 million was a reasonable sum for future pain and suffering. The court found that $5 million was a reasonable award for Perez’s past pain and suffering, endured since his accident in 2013.

The court was willing to award such figures despite, just three months ago, awarding another traumatic brain injury plaintiff $10 million for future pain and suffering. Hedges v. Planned Security Service, Inc., 190 A.D.3d 485 (1st Dep’t 2021). In so doing, the First Department demonstrated its willingness to raise the bar of sustainable pain and suffering verdicts for plaintiffs that suffer exceptionally severe traumatic brain injuries.

On March 24, 2021, GVK obtained dismissal of plaintiffs’ complaint asserting causes of action for legal malpractice, breach of contract and a violation of Judiciary Law § 487 against GVK’s attorney client. Plaintiffs alleged that they would have obtained a more favorable outcome in an underlying foreclosure action had GVK’s client asserted a statute of limitations defense in the foreclosure action. It was Plaintiffs position that the legal malpractice claim was not premature because the entry of a Judgment of Foreclosure and Sale was “final” and disposed of the case.

GVK successfully argued that plaintiffs could not meet the “case within-a-case” standard based on the fact that the foreclosure sale had not yet occurred, and thus there were no actual ascertainable damages. In addition, there was still an open Order to Show Cause filed on behalf of plaintiffs seeking to vacate the Judgement of Foreclosure and
Sale, which could render all or at least some of the malpractice claims moot.

Justice Porzio, in Supreme Court, Richmond County rejected plaintiffs’ arguments and agreed that the elements of causation and damages in Plaintiffs’ legal malpractice cause of action are dependent on the outcome of the Order to Show Cause, and as such, dismissed the malpractice cause of action as premature. The court also agreed that GVK demonstrated the breach of contract and violation of Judiciary Law § 487 claims were duplicative of the malpractice claims and not adequately plead and dismissed both causes of action.

Parenthetically, while plaintiff was granted leave to replead the malpractice claim, the ultimate success of such claim is now far less likely due to the recent New York Court of Appeals holding in Freedom Mortgage Corp. v. Engel which reversed the Second Department’s decision and held that acceleration of a mortgage loan may be revoked by the voluntary discontinuance of a prior foreclosure action. This holding, which came down while the motion practice was pending, renders it far less likely that a meritorious statute of limitations defense to the foreclosure action ever existed.

The Appellate Division, Second Department unanimously affirmed the lower Court’s decision granting summary judgment to GVK’s client, a paving contractor. Plaintiff-Appellant, a pedestrian, tripped and fell on a chain that was suspended approximately 4-5 inches above ground between two posts.

GVK successfully argued in the Supreme Court, Kings County that the paving contractor had no liability under the Espinal doctrine, as it was an independent contractor that did not launch a force of harm. It was argued that the paving contractor had no obligation to maintain the chain under its contract with the property owner and was not the entity that actually placed the chain. In addition, GVK argued that, since the accident during daylight and was readily observable by the reasonable use of one’s senses, the chain was open and obvious and not inherently dangerous.

The Appellate Division, Second Department adopted GVK’s arguments and, in particular, that the chain was not inherently dangerous and constituted an open and obvious condition. GVK’s client was also awarded a bill of costs for the appeal.

The decision was particularly important because the Appellate Division, Second Department typically denies similar motions on the grounds that whether a condition is open and obvious is a question for the jury. Possible reasons for this defendant-friendly decision in an otherwise plaintiff-leaning appellate court, include the clear and undisputed facts surrounding the accident and the interpretation that a chain is not inherently dangerous absent other factors, as well as the emerging trend of courts to dismiss cases when appropriate due to the backlog created by COVID-19.

He joins a select group of attorneys who are peer rated for the highest level of professional excellence.

Patrick is a trial attorney with over 29 years of experiencing trying catastrophic, high exposure and complex matters in State and Federal Court. He is well practiced in New York State Labor Law and the complex contractual and loss transfer issues associated with the NYS Labor Law.

Patrick has tried trucking/transportation, wrongful death, premises, slip/trip & fall, lead, false arrest/malicious prosecution, dram shop, sports/recreation, products liability, and municipal liability matters with great success.

View Patrick Cooney’s peer reviews at here.