Jury verdict: January 19, 2023, Orange County, Judge Sciortino
Defense Counsel: O'Connor Redd Orlando LLP by Joseph T. Redd and Anthony Ruggeri.

In the case of Hichak v. Grand Plumbing, plaintiff, age 38, following a hit in the rear accident, underwent a two level disc replacement surgery, followed by a three level cervical and subsequent implantation of a permanent spinal stimulator. Plaintiff claimed failed neck syndrome and a significant reduction in quality of life. Pre-trial, plaintiff's attorney, Andrew Finkelstein of Finkelstein and Partners presented a non-negotiable demand of 10 million dollars. A subsequent offer was met with an increased demand.

This was an aggravation and exacerbation case, with plaintiff downplaying the significance of prior treatment. On MRI, a large osteophyte complex with herniation was found at the C6 - C7 level. Plaintiff's expert, Dr. Oppenheim, conceded that the osteophyte complex and herniation pre-existed, but that the "crash" triggered/activated symptoms.

To mitigate claims of ongoing disability, defense counsel offered normal IMEs, surveillance video and social media postings. Distinctions were drawn by the defense between subjective "symptoms" of pain and verifiable objective "signs." The defense argued (with the aid of bio-mechanical and neurosurgeon experts) that the tap caused a classic case of whiplash (WAD), which would have resolved itself over time, and that surgery was not a treatment option for whiplash. Defense counsel argued that the treating surgeon (not called by plaintiff) ordered an MRI which revealed a pre-existing problem at C6 - C7 given the strange/non physiologic, constellation of ever changing symptoms. The defense stressed to the jury that surgical intervention was warranted REGARDLESS of the temporary whiplash injury sustained, and that the MRI simply revealed the preexisting condition.

On summation, the defense argued that while there was real question about a "significant limitation" as it pertained ONLY to the temporary whiplash condition, it did not pertain to the underlying C6-C7 osteophyte disc complex. The jury found for plaintiff on this one question of "serious injury" but not on the other two categories of "serious injury" alleged. The jury chose to award the plaintiff 15 thousand dollars for the temporary whiplash condition, and not the 15 million dollars demanded by counsel.

In the NY Labor Law action of Del Gross v. K & R Relectric, plaintiff claims a traumatic brain injury along with a number of cognitive issues as a result of an alleged December 2014 work accident where he was struck on the head by an unsecured hammer that fell from a ladder which plaintiff went to move. During discovery, it was revealed that plaintiff has a long standing history of substance abuse and mental health treatment as early as 2012, two years prior to the subject accident, as well as substance abuse and mental health treatment post-accident, including as recently as 2019. Plaintiff claimed that these treatment records were not discoverable under Mental Hygiene Law § 33.13(c)(1).

The lower court granted our motion to compel authorizations for these records and plaintiff appealed the decision. On appeal, we argued the lower court was correct in ordering plaintiff to provide authorizations to obtain plaintiff’s pre- and post- accident mental health and substance abuse records due to the TBI claim in order to establish plaintiff's baseline competency prior to the accident and how the post-accident treatment intertwined with his TBI claim.

The 1st Department affirmed the lower court, holding that plaintiff put his mental health condition in issue such that the interests of justice significantly outweighed the need to maintain confidentiality of those records.

Partner Joseph Orlando wins summary judgment dismissal of a plaintiff’s Complaint in a construction accident case venued in Bronx County Supreme Court.  In Padilla v. Touro College, the 26 year old plaintiff was a security system installer as part of the renovation of Touro College located in Brooklyn, NY.  He claimed that a stack of 5 – 8 sheets of sheetrock, 4 ft. x 8 ft in size, leaning up against a hallway wall with their 8-foot length against the floor fell over onto him crushing his right arm when he went to move the stack in order to get behind it to perform his work. Plaintiff asserted claims of negligence and violations of Labor Law §§200, 240 and 241(6) against defendant Touro College, the owner of the premises. Judge Adrian Armstrong granted Mr. Orlando’s motion for summary judgment dismissal of plaintiff’s Complaint against Touro College.  The judge dismissed the Labor 240 claim based on the lack of a height differential between the plaintiff and the stack of sheetrock as the stack was only 4 feet in height.  The judge dismissed the Labor Law 241(6) claim as plaintiff’s cited Industrial Code sections were determined to be either inapplicable or insufficient to sustain a 241(6) claim.  As for the negligence and the Labor Law 200 claims, the judge concluded that the stack of sheetrock was not a ‘dangerous condition’ as it did not block the hallway and did not pose a danger until the plaintiff attempted to move it.  The judge also held that the accident arose from the ‘manner and method’ of the work and, since Touro College did not direct, control or supervise the plaintiff’s work activities, the judge dismissed the negligence and Labor Law 200 claims against Touro College.

This New York County-venued Labor Law action stems from a back injury sustained by a structural steel installer while working on a job in a large electrical room at LaGuardia Airport’s Terminal C in 2015.  We represented the general contractor, V.R.H. Construction Corp., and the terminal’s lessee, Delta Airlines.  Plaintiff worked for non-party Inter-Metal Fabricators building a new, lower ceiling in the electrical room and then installing additional steel beams in the confined and obstructed space in between the new, lower ceiling and the original ceiling to provide additional support to the original ceiling.  To do this, Plaintiff and his foreman had to lift the beams into the space by hand and maneuver them into place by hand around obstructions as well.  It was while he was doing the latter that he allegedly injured his back.

Plaintiff named Delta Airlines, the terminal building’s lessee, and V.R.H. Construction Corp., the project’s general contractor, as defendants, and sued both under Labor Law sections 240(1), 241(6), and 200.  He also made a general negligence claim.  Absent from the facts, however, was any claim that Plaintiff himself fell from a height or that anything fell on Plaintiff.  Rather, his claim centered on the obstructions in the workspace that prevented him from being able to use a hoisting device.

We moved for summary judgment on all of Plaintiff’s claims at the close of discovery.  As to Plaintiff’s Labor Law Section 240(1) claims, we argued that a Plaintiff who sustains an injury merely because he lifted a heavy object cannot sustain a claim under that Section, based on case law from other Appellate Departments.  There is no case law on that issue from the First Department, although certain trial level courts within the First Department have followed the other Appellate Departments on that point.  In opposition, Plaintiff withdrew his Labor Law Section 200 and 241(6) claims, as well as his general negligence claim, to focus on his Section 240(1) claim.  In an attempt to sustain his Labor Law Section 240(1) claim Plaintiff argued, in a novel approach not supported by any New York case law, that Defendants should have reconfigured the work site to allow for the use of a hoisting device.

Following oral argument on October 1, 2020, Justice Shlomo Hagler of the Supreme Court, New York County, granted our Summary Judgment Motion, dismissing Plaintiff’s novel argument as unsustainable under New York law and finding that sustaining an injury merely by lifting a heavy weight, as Plaintiff alleged, is insufficient to sustain a Labor Law Section 240(1) claim, thereby granting Defendants’ motion and dismissing Plaintiffs’ claim in full.

This Rensselaer County venued personal injury action stems from a stair collapse incident that occurred at the residential home of co-defendant, David DePaulo. We represented Bella Home Builders, Mr. DePaulo’s construction company. Plaintiff was at the subject premises at the request of defendant DePaulo to repair a leak in his condensation pump in the air conditioner unit in the basement. As he stepped onto the staircase, the entire staircase collapsed.  The plaintiff suffered a compound fracture of the ankle with multiple surgeries.  The staircase had been installed several years earlier during the construction of the home.  Defendant Bella was the general contractor for the construction of the home.  DePaulo was the titled owner and was having the home built as his personal residence.  DePaulo testified that he personally performed many tasks during construction himself in his individual capacity in order to save money by not going through Bella.  One of those tasks was the installation of the subject staircase.

Plaintiff named Mr. DePaulo individually and Bella as defendants. He claimed that DePaulo and Bella were negligent in the installation and maintenance  of the stairs and for failing to properly inspect the subject stairs.  Plaintiff also claimed that DePaulo was wearing both his homeowner’s hat and his Bella hat at the time of the installation of the stairs and therefore, Bella is liable for DePaulo’s actions under respondeat superior.  We moved for summary judgment at the close of discovery arguing that Bella cannot be held liable given the sworn, uncontradicted testimony of defendant DePaulo that he installed the subject staircase on his own, in his capacity as the homeowner of the subject premises. Judge Patrick McGrath issued a decision on August 18, 2020 granting our Summary Judgment Motion agreeing that Bella did not have any involvement in the installation or maintenance of the stairs, that Bella could not be held responsible for the independent acts of its principal performed in his capacity as the homeowner and that Bella did not have actual or constructive notice of any defect in the staircase.

New associate Taylor J. Hills prevailed in the First Department on a coverage issue involving the application of defendant’s automobile insurance policy.  In Peter Pan Bus Lines v. The Hanover Insurance Co., the underlying plaintiff arrived at her destination on a Peter Pan bus and either tripped over a suitcase while approaching her own suitcase or tripped on the curb while looking for her suitcase.  Defendant Hanover issued an auto policy to our client, Peter Pan.  The lower court denied our motion for summary judgment seeking a declaration that Hanover was obligated to defend and indemnify Peter Pan on a primary, non-contributory basis in the underlying action.  The Appellate Division unanimously reversed holding that the underlying plaintiff’s accident resulted from Peter Pan’s use of the bus, a covered auto under defendant’s policy, regardless of whether she tripped over luggage or tripped on the curb looking for her luggage.


Plaintiff commenced an action against Target Corporation and All Jersey Janitorial Services, Inc. to recover damages for injuries she sustained after she slipped and fell in a Target store.  Plaintiff alleged that she was caused to slip and fall as a result of the defendants negligence in failing to maintain the premises in a safe condition by allowing an excessive amount of wax to remain on the floor creating a slipping hazard.  Defendants moved for summary judgment arguing that there was no breach of duty to Plaintiff and that defendants were not the cause of Plaintiff’s accident.  The Supreme Court agreed finding that Plaintiff’s assertion that the floor was very shiny and highly polished was insufficient to demonstrate that it constituted a dangerous condition; and that, absent proof that the defendants were negligent in applying wax or polish, liability could not be imposed.

In Nazario v. Knight Electric, on appeal to the New York Court of Appeals, partner Amy Fenno won reversal of Labor Law § 240 (1) liability when the Court decided the Appellate Division First Department had erroneously granted summary judgment to Plaintiff under Labor Law § 240 (1). The Court held there was a triable issue of fact as to whether the A-frame ladder on which Nazario was standing failed to provide adequate protection. Nazario had been performing electrical work from the A-frame ladder and fell after being electrocuted. The Court held there was a factual issue as to whether the ladder failed to provide proper protection under Labor Law § 240 (1), and whether additional safety devices were required. Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287 (2003); Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426 [2015], reargument denied 25 N.Y.3d 1211 (2015).

In Frishman v. 1211 McDonald, LLC, et al. (Kings County, Index No. 28068/11), Judge Richard Velasquez ultimately granted summary judgment in favor of our client. Plaintiff claims she tripped and fell as a result of a cracked sidewalk in front of our client’s store and sued the building owner and our client.

We previously moved for summary judgment on the grounds that our client, the ground floor commercial tenant, could not be held liable because:

(1) The "sidewalk law,"Administrative Code § 7-210, was inapplicable since our client was the tenant, not the owner.

(2) There was no common law cause of action since our client did not create the condition; negligently repair the sidewalk; or derive a special use from the sidewalk.

(3) The lease provision making our client responsible for sidewalk repairs did not create a duty to the plaintiff, as per Espinal v. Melville Snow Contrs.

(4) The leasehold contractual indemnity provision was unenforceable as it violated G.O.L. § 5-321's prohibition against a tenant indemnifying a landlord for the landlord’s negligence and this case did not fall under the Great Northern exception to G.O.L. § 5-321 since the parties to the lease were not sophisticated individuals who, through an arms-length transaction, agreed to provide contractual indemnity and allocated the risk through the use of insurance.

(5) Our client did not breach its duty to procure insurance in favor of the landlord.

The court previously denied the motion, finding that there was an "issue of fact whether the tenant’s lease required maintenance of sidewalk." Therefore, we moved to reargue and explained that the plain wording of the lease states that the tenant was obligated to "take good care [of the premises and sidewalk and] make all non-structural repairs [emphasis added] thereto as and when needed to preserve them in good working order and condition..." Thus, the tenant’s duties as to the sidewalk were limited to routine cleaning and not the physical repair of the sidewalk flags, as supported by the relevant case law. After hearing argument, Justice Velasquez reversed the previous decision and issued an order granting summary judgment and dismissal of all claims against our client.