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PVRP Recent News


PVRP NEWS highlights the recent successes and honors achieved by our attorneys.  If you desire further information on the case please contact the attorney directly.
 

December 2017 Labor Law
(Jeffrey Van Etten)
Mr. Van Etten received a defense verdict on a Labor Law, Section 241(6) case involving a 38 year old union electrician who was claiming to have fallen on a debris pile in a passageway/hallway while carrying a 60 lb. pipe. Plaintiff had received both a Social Security Disability and NEBF Disability Retirement, with alleged lost earnings ranging (past and future) from $4,481,340 to $5,594,790. For further details, you may contact Mr. Van Etten, directly.

April 2017 Premises Liability
(Jeffrey Van Etten & Elizabeth G. Kastner)
Appellate Division, First Department unanimously affirmed (April 4, 2017) lower court decision, Jeffrey Van Etten & Elizabeth Kastner on the law, which granted summary judgment to premises owner of a mixed use building, in a well reported wrongful death case. The plaintiff-decedent was a therapist who was stabbed to death by the former patient of a colleague and co-tenant within a leased commercial space. Initial decision on the motion for summary judgment by Mr. Van Etten was based on a lack of duty argument and fact that there was no notice of prior criminal conduct, nor was the intentional tort conduct of the assailant foreseeable. On appeal, the Appellate Division agreed/held that defendant established that no duty was owed and that they had minimum security protections in place and, that the assault was not foreseeable.

For the complete decision click here.


March 2016 Premises Liability/Negligent Security
(Jeffrey Van Etten)
Appellate Division, Second Department unanimously reversed lower court, Jeffrey Van Etten & Elizabeth Kastner on the law, which denied summary judgment to the owner of an industrial complex whose tenant’s facilities were robbed, resulting in excess of seven figures of damages. On appeal, the Appellate Division agreed/held that defendant established that they had minimum security protections in place and that the robbery was unforeseeable.

For the complete decision click here.


March 2016 Premises Liability:
Plaintiff thrown from horse
(Henry M. Primavera)
Appellate Division, First Department unanimously reverses lower court decision, Henry M. Primavera on the law, which denied summary judgment in favor of the stable operator and the City of New York. The Appellate Division held that the risk of a horse acting in an unintended manner, resulting in the plaintiff being thrown, is a risk inherent in the sport of horseback riding. Moreover, as plaintiff could not establish that there were defects in the trail itself, and the City had no involvement in the operation of the stable, there was no liability on the part of the City as well.

For the complete decision click here.


February 2016 Insurance Coverage
(Leonard Porcelli)
The Appellate Division, Second Department reversed the lower court decision denying summary judgment to our client, a managing general agent. The Appellate Division determined that the managing general agent owed no duty whatsoever to the policyholder notwithstanding the claim that the managing general agent allegedly failed to note a wide discrepancy in the square footage listed on the application for insurance as compared to the square footage in the original condominium offering plan resulting in the premises being underinsured by $796,162.76.

For the complete decision click here.


January 2016 Labor Law/ Wrongful Death
(Jeffrey Van Etten & Elizabeth G. Kastner)
Appellate Division, First Department unanimously affirmed the grant of Summary Judgement received by partner, Jeffrey K. Van Etten, in a Wrongful Death Labor Law case involving a 13 Story fall from a Condominium building during window washing activities by the decedent. The Court agreed with the lack of duty arguments postured on behalf of our client, an independent contractor, and agreed that there was no evidence that their actions caused or resulted in the cutting of anchor bolts for the use by the decedent. Our Appellate Brief was prepared jointly by Mr. Van Etten and Elizabeth Gelfand Kastner, our in-office Appellate Counsel.

December 2015 Premises Liability/ Negligent Security
(Jeffrey Van Etten)
In this well-publicized Negligent Security/ Premises Liability case, the trial court awarded our clients, the building owners and management company, summary judgment and dismissed the case in its entirety. This complex matter initially received attention related to the underlying criminal matter, People v. Tarloff, in which David Tarloff was charged and found guilty in the stabbing death of a prominent Upper Eastside Psychologist. The decedent’s estate then brought this civil matter against our clients for failing to provide adequate security in the building where the murder had taken place. However, within our summary judgment motion we established that reasonable security measures were in place at the building and that the attack on the decedent was not foreseeable.

For trial court’s complete decision click here.

For more details involving the criminal case click here.

October 2015 Agency Dispute
(Jerome S. Oliner)
Dismissal, with prejudice was obtained on behalf of our client, a property management company. Plaintiff, a majority owner of condominium units and cooperative shares as related to two separate buildings, claimed that the property management company's actions resulted in a waste of assets and economic loss. Court Orders directing the plaintiff to disclose financial data related to its claims were repeatedly disregarded. Ultimately, the Court dismissed plaintiff's action with prejudice finding that the failure to provide Court ordered discovery was willful and contumacious. In doing so the Court denied plaintiff’s Motion lo Voluntarily Discontinue the Action, based upon a late contradictory claim of lack of standing, finding same to be nothing more than an attempt to avoid the consequences of the Court's prior Orders.

August 2015 Insurance Coverage
(Leonard Porcelli)
The New York Law Journal recently published an article which summarized a decision by the Appellate Division, Second Department, in favor of our client. The Appellate Court held that the arbitration award in favor of our client was properly confirmed in Supreme Court, Queens County as it was not a motor vehicle insurer subject to Insurance Law § 5105's mandatory arbitration provisions. Andrew Denney, Panel Upholds Insurance Ruling in Horse-Taxi Collision Case, N.Y.L.J., Aug. 4, 2015, at 1.

Article:
http://www.newyorklawjournal.com/id=1202733764017?keywords=porcelli&publication=New+York+Law+Journal

Decision:
Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Fla., 2015 N.Y. App. Div. 2015 NY Slip Op 06343 (N.Y. App. Div. 2d Dep't July 29, 2015).

July 2015 Slip and Fall
(John J. Ullrich)
Summary Judgment was obtained on behalf of our client, a snow and ice removal company, dismissing the plaintiff’s claims and the codefendant landowner’s contractual claims. Plaintiff alleged that he suffered serious personal injuries after he slipped on black ice that formed on the co-defendant’s property due to our client’s failure to properly remove snow and ice.

February 2015 Medical Malpractice
(Angie Aguilar)
In Nassau County, Summary Judgment was granted in favor of our clients, two primary care physicians that treated the plaintiff after the codefendant chiropractor performed an adjustment to his neck. It was alleged that our clients failed to prevent the plaintiff’s vertebral artery dissection (VAD) from extending into his basilar artery.

May 2015 Construction Design Defect/ Improper Construction Methods
(Jerome S. Oliner)
Summary judgment was obtained on behalf of our client, a demolition contractor, resulting in the dismissal of the plaintiff's claims that its Brooklyn brownstone building sustained structural damage as a result of the demolition of a building that was attached to it. It was established that any structural damage complained of resulted from the failures of co-defendants to properly protect, shore and/or underpin the plaintiff's structure in relation to the completion of deep excavation adjacent to it.

November 2014 Dental Malpractice
(Thaddeus J. Rozanski)
Defendant’s verdict in New York County on behalf of two dentists in a dental malpractice action. Plaintiff had a molar extracted and claimed the extraction caused a perforation into her sinus. The client defendants were alleged to have negligently repaired the perforation in a manner that caused a massive sinus and bone infection. Plaintiff underwent 3 surgical procedures and the symptoms never completely resolved. Defendants claimed the perforation was properly repaired, but that plaintiff’s failure to follow post-repair instructions caused a re-opening of the perforation. Defendants also claimed plaintiff had an underlying chronic sinus condition.

November 2014 Property Damage Subrogation Action
(Jerome S. Oliner)
Defendant's verdict was obtained at Arbitration, which consisted of a three judge panel, on behalf of irrigation contractor servicing residential unit terrace of a high end New York City condominium building. As a result of a freeze condition a supply pipe servicing a frost free hose bib failed, resulting in a multimillion dollar claim associated with water damage. All adverse parties asserted that the freeze condition occurred as a result of our client's attachment of irrigation related apparatus to the frost free hose bib. After funding a settlement agreement with the plaintiff, defendants proceeded to Arbitration. Based upon pre-arbitration statements, testimony, and post arbitration statements the panel declined to assess any liability against our client. The panel concurred with our argument that the involved irrigation apparatus was thermally insulated from the condominium unit's frost free hose bib and as such, could not have negatively impacted its functionality.

October 2014 Medical Malpractice   
(Douglas P. Perry)
Douglas P. Perry obtained a Defendant’s verdict in this action which was venued in Suffolk County Supreme Court. The injured Plaintiff failed to utilize safety goggles while working on the removal of hard PVC coping on an abandoned swimming pool. This resulted in sharp material penetrating the plaintiffs eye which caused a ruptured globe (penetrating corneal injury) and triggered both a traumatic cataract and retinal detachment. The Plaintiff was initially treated by our client in a Hospital setting where immediate surgery was performed to repair the globe. When plaintiff presented to our clients offices on the following day, it was apparent that he was suffering from endopthalmitis and was in need of further surgery to repair the globe and prevent further loss of vitreous fluid. Plaintiff went on to have multiple restorative procedures at the New York Eye and Ear Infirmary. It was alleged that his corneal injury resulted from improper treatment rendered by our client immediately following the accident. We were able to establish through expert testimony that the plaintiff received appropriate treatment for his penetrating eye injury and that the accident alone was the cause of plaintiff’s resultant damages. A Suffolk County jury returned a verdict in favor of our client, a Board Certified Ophthalmologist, and determined that he did not deviate from the standard of care during his treatment of the plaintiff.

August 2014 Slip and Fall
(Thaddeus J. Rozanski)
Defendant’s verdict in Queens County on a slip and fall case. Plaintiff, a maintenance worker, claimed to have fallen on a spill of hydraulic fluid near a trash compactor. The defendant compactor repair company had worked on the unit several days prior, and had added fluid to the machine. Defendant claimed the plaintiff’s employer was responsible to clean any spill but admitted to returning to the site, after the accident, to do cleanup. The accident occurred in 2008 and plaintiff never returned to work. She had soft-tissue injuries to the back and shoulder. At the start of trial, plaintiff turned down a settlement offer of $175,000. The verdict was unanimous.

December 2013 Medical Malpractice
(Henry M. Primavera)
In this medical malpractice action, plaintiff, a college student, who injured his leg during football practice, alleged that the insured, an emergency room physician, failed to timely diagnose and treat a case of compartment syndrome. Following the completion of pre-trial discovery, a summary judgment motion was made and granted on the insured physician’s behalf.

December 2013 Civil Rights Action
(Thaddeus J. Rozanski)
Working with pro bono counsel for the insured women’s drug rehabilitation facility, we obtained summary judgment dismissing an action in SDNY which sought damages by a resident on probation assignment from incarceration for allegations of false arrest, assault, and intentional deprivation of liberty.

November 2013 Civil Rights Action
(James C. Clerkin)
Plaintiff commenced suit against a municipality and our client (a professional engineer) alleging constitutional violations pursuant to 42 U.S.C. Sec. 1983 and the New York State Constitution as well as several state law claims. Our Rule 12(b)(6) dismissal motion was granted by Judge Seybert of the United States District Court for the Eastern District of New York.

November 2013 Snow and Ice
(Elizabeth G. Kastner)
Plaintiff sought damages for personal injuries allegedly suffered when he slipped and fell on ice in front of defendant’s residence. The night preceding this incident there was an ongoing snow storm. Defendant endeavored to clear and salt the area, but over the course of the night additional snow, wind and plunging temperatures contributed to sidewalk conditions of black ice which plaintiff saw but nevertheless chose to walk across. Our summary judgment motion using the “storm in progress” defense was granted by Supreme Court, Queens County. The court held that plaintiff had failed to establish the source of the ice or that any action on the part of the defendant contributed to or caused the alleged hazardous condition. Plaintiff moved to reargue and filed a Notice of Appeal. The motion to reargue was denied. The Appellate Division, Second Department, affirmed the lower court decision. Subsequently, plaintiff moved to reargue the appeal and to appeal to the New York State Court of Appeals. This motion was also denied with an award of costs to the defendant.

November 2013 Honors
James C. Clerkin was named Super Lawyers by a rating service of outstanding lawyers who have obtained a high degree of peer recognition and professional achievement. No more than five percent of New York State lawyers are selected for this honor annually.

October 2013 Medical Malpractice
(Amanda Perry)
Plaintiff claimed that our client, her urologist, negligently performed cystocele and rectocele repair surgery. The Supreme Court of Nassau County granted our motion to dismiss plaintiff’s complaint based on lack of personal jurisdiction and failure to properly bring the action within the statute of limitations; and denied plaintiff’s cross-motion seeking an extension of time to correct jurisdictional deficiencies.

October 2013 Premises Liability
(Jeffrey Van Etten)
(Elizabeth G. Kastner)
Plaintiff commenced this lawsuit against the building owners and management company after suffering burns over 50% of his body when a failure to turn off the gas igniting a pilot light in an apartment in which plaintiff was refinishing floors caused the lacquer vapors to ignite. The management company commenced a third-party action against our client, plaintiff’s employer. The matter went to trial in Supreme Court, Bronx County, and the jury returned a verdict in the amount of $18,681,323.19, finding 100% liability on the part of the management company and no liability on the part of the owners or our client. The jury further found that the owners were negligent, but that this was not a proximate cause of the injuries. The management company appealed the verdict claiming it was excessive, that there were numerous trial errors; and that the jury was improperly polled. The Appellate Division, First Department, dismissed the appeal and unanimously upheld the verdict.

October 2013 Adult/Nursing Home Liability   
(Douglas P. Perry)
In a case against an Adult Home where liability favored the plaintiff, we made a calculated and reasoned decision based upon our pre-trial evaluations to try the case to conclusion and have the jury render a verdict because plaintiff’s counsel refused to negotiate a settlement for an amount below $3,000,000. After testimony from plaintiffs two treating Neurosurgeons, a Vocational Rehabilitation Expert, Life Care Planner and treating Urologist, the defense presented the testimony of their expert neurologist who refuted plaintiff’s claims of permanency, past and future lost earnings and past and future pain and suffering. The defense expert testified that the sole cause of plaintiff’s alleged injuries were the result of a progressive degenerative spinal condition which pre-dated the date of the accident in question. Defendant’s expert reviewed 14 years of medical records. Through his testimony we were able to establish that the injuries alleged by plaintiff were not the result of the accident in question but were the result of plaintiff’s spinal degeneration. After deliberating over the course of two days, the jury returned a verdict of $250,000 and refused to make any award for either past or future lost earnings or future pain and suffering. In addition, the jury found the plaintiff to be 30% responsible for the accident thereby resulting in the award to the plaintiff being reduced to a total of $175,000; an amount far below the settlement offer to plaintiff’s counsel. As a result of the favorable Jury Verdict, plaintiff’s counsel was forced to initiate post-trial motions seeking to either set aside the verdict or for an additur to the jury award. The post-trial motions are currently pending before the Trial Court.

October 2013 Defense Verdict
(Geoffrey H. Pforr)
Following a two-week trial, we obtained a unanimous defense verdict in favor of our client, an obstetrician/gynecologist who performed a hysterectomy and bilateral salpingo-oopherectomy on the then 44-year-old plaintiff. She claimed to have developed Complex Regional Pain Syndrome as a result of that procedure leading to substantial neurological and pain management treatment, total incapacity from employment, and future surgical implantation of a spinal nerve stimulator. The plaintiff contended that our client negligently performed the hysterectomy and failed to obtain her informed consent. Plaintiff's expert testified that the surgical incision extended too far to left thereby causing a self-retaining retractor to be improperly placed to the left of midline. As a result, the blade of the retractor stretched or compressed the plaintiff's femoral nerve, lateral cutaneous nerve, and genito-femoral nerve on her left side causing significant damage to those nerves. Through our expert and our client, we established that the retractor was both properly placed and remained midline by virtue of the abdominal muscles and that our client took all of the appropriate steps to prevent nerve damage. We also established that our client properly obtained plaintiff’s informed consent for the procedure.

July 2013 Medical Malpractice
(Amanda Perry)
Supreme Court, New York County, granted our motion and dismissed plaintiff’s complaint for lack of personal jurisdiction over our client, a New Jersey licensed physician who treated the plaintiff once at his New Jersey office.

May 2013 Medical Malpractice
(Douglas P. Perry)
29 year old male underwent surgery consisting of a laminectomy by a Neurosurgeon. Anesthesia was administered by the co-defendant during the the course of a 7 hour operative procedure during which the patient was positioned in the prone position on a Jackson Operating Table. The plaintiff was positioned on the operating room table by a combination of the surgeon, anesthesiologist and operating room personnel who were employed by the hospital. Shortly after the plaintiff came out of anesthesia, he made complaints of bilateral paresthesias in both upper extremities from the region of the armpits down through the fourth and fifth fingers of each hand. Plaintiff introduced expert testimony which established that the type of injuries from which the plaintiff suffered could only have resulted from negligent positioning on the operating room table. At the close of plaintiff’s case, the complaint was dismissed as to the defendant, hospital, although the case proceeded against both the surgeon and anesthesiologist as well as the hospital on a Mduba Theory. In his summation, plaintiff made a claim for $2.5 million for pain and suffering and lost earnings. Following six hours of deliberations, the jury returned a verdict in favor of both the surgeon and anesthesiologist as well as the hospital on plaintiff’s Mduba Theory. The verdict was returned on May 28, 2013 in the Suffolk County, Supreme Court.

May 2013 Elevator
(Elizabeth G. Kastner)
(Joseph C. Bellard)
The Appellate Division, 1st Dept. affirmed the decision of Justice Brigantti-Hughes which granted our summary judgment Cross- Motion for dismissal of elevator accident claim. Plaintiff fell down elevator shaft when he exited stalled elevator stuck between floors. The court agreed that plaintiff’s act was an unforeseeable, superseding cause of his accident.

April 2013 Defense Verdict
(Jeffrey Van Etten)
We received a defense verdict after a three week trial in Supreme Court, Queens County in a wrongful death action of an alleged hit and run with a tractor-trailer and an 81 year old mother. Plaintiff, a pedestrian, was walking to the cemetery to visit her deceased husband and was allegedly struck by defendant’s tractor-trailer according to police reports and at least one eyewitness account. Defendant’s tractor-trailer driver denied contact with the pedestrian and defendants utilized an accident reconstruction expert and a biomechanical expert to establish that the injuries sustained by the decedent were inconsistent with a tractor-trailer knockdown and/or run over, as testified to by the non-party witness. Plaintiff’s counsel produced their own biomechanical engineer expert to refute defendants’ expert, as well as the non-party witness. Defendants utilized not only their experts and driver, but also utilized the EMT to dispute issues involving the injuries and the time of death and a second non-party witness who was in the area and did not see the tractor-trailer strike the pedestrian.

April 2013 Negligent Security
(Thomas F. Maher)
Plaintiff in this matter was forcibly raped while inside her Manhattan apartment building. Summary judgment was obtained on behalf of the defendant property owner upon a showing that the property owner employed minimal security measures and that the criminal acts of the assailant were not reasonably foreseeable.

April 2013 Snow & Ice
(Thomas F. Maher)
Plaintiff in this matter alleged that, while staying at a hotel, she was caused to slip and fall on snow and ice exiting her vehicle in the hotel’s rear parking lot. Plaintiff alleged that while the hotel’s main parking lot had been plowed, the rear parking lot had not been cleared of snow. Following the incident, plaintiff underwent cervical fusion surgery and two surgical procedures on her right shoulder. Summary judgment was obtained by our office on behalf of the snow and ice removal contractor with respect to both the plaintiff’s claims and the contractual claims asserted by the co-defendant hotel owner.

April 2013 Trip & Fall
(Matthew J. Rodriguez)
In a trip and fall action where plaintiff fell over a construction plate in the street abutting our insured’s premises, the court granted our motion for summary judgment following plaintiff’s deposition and supported by affidavit testimony of the insured by finding that the abutting property owner owed no duty to plaintiff even though the insured’s premises was undergoing a renovation at the time of plaintiff’s accident as it did not actively place the construction plate nor did it have notice of its existence.

April 2013 Trip & Fall
(Matthew J. Rodriguez)
In a case where plaintiff tripped over a partially collapsed tree well guard lying on the sidewalk abutting a commercial building, the court granted our motion for summary judgment finding that our client was nothing more than the property manager for the subject premises. Although it performed a subsequent repair of the subject tree well guard, the court went on to find that the insured did not take on the statutory role of the owner to maintain the sidewalk nor was there any evidence that it either created the defect or had notice of it prior to the date of accident. (New York County, April, 2013)

March 2013 Declaratory Judgment
(Leonard Porcelli)
In a declaratory judgment lawsuit between two insurers, our client as plaintiff settled the coverage dispute involving issues of late disclaimer and co-insurance by recovering $450,000 from the defendant carrier.

January 2013 Medical Malpractice
(Henry M. Primavera)
Third Party Action brought by Radiological Group against corporation that provided the interpretation of radiological studies over the internet dismissed on the grounds that the radiologist who allegedly misinterpreted a mammogram was an independent contractor.

January 2013 NY Labor Law
(Thomas F. Maher)
Plaintiff fell from a ladder during the course of a construction project. As a result of the accident, plaintiff sustained injuries to his neck and back as well as an ankle injury that required surgical repair. The owner of the development where the construction was being performed is a large corporation which operates under multiple business names. Defendants moved for summary judgment on the basis that plaintiff’s claims against the named defendants were barred by Section 11 of the New York Worker’s Compensation Law. Plaintiff argued that summary judgment should be denied as documents submitted to the Worker’s Compensation Board listed plaintiff’s employer as an entity other than the named defendants. In granting defendants’ motion for summary judgment, the court concluded that the evidence submitted by defendants clearly established that the named defendants were both the property owner and the plaintiff’s employer.

January 2013 Property Damage
(Thomas F. Maher)
Plaintiff, owner of a brownstone, alleged that she sustained property damage and lost rental income as a result of construction work being performed by the defendants upon an adjacent property. At trial, defendants made a motion in limine to preclude plaintiff from introducing evidence with respect to her claim for lost rental income. In this regard, defendants argued that plaintiff had not presented any non-speculative evidence (expert or otherwise) from which a jury could give an award for lost rental income. The trial court granted defendants’ in limine motion. Following a jury verdict, plaintiff appealed for a modification of the judgment to include an award for lost rental income. On appeal, the Appellate Division found that the trial court properly precluded plaintiff from introducing any evidence with respect to her claim for lost rental income.

Past Decisions

 

 
 

   
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