News

Partner Joseph Orlando and associate Joseph Calandriello obtain summary judgment dismissal of a third-party action against the plaintiff’s employer in the case of Darwin Cordova v. Puccio Electric, Supreme Court, New York County, Index No. 154834/2022.  The plaintiff in Cordova was an electrician employed by our client, Puccio Electric.  He was working from a ladder when an unsecured stack of sheetrock leaning up against the wall fell over and knocked him off of the ladder with the stack of sheetrock landing on his leg.  The incident resulted in a comminuted, displaced fracture of the right distal tibia.  He had extreme swelling which was addressed via an emergent fasciotomy.  The plaintiff underwent a total of six surgeries to his right lower leg and was admitted to Stony Brook Hospital for 26 days.  The third-party action against Puccio Electric alleged claims sounding in contractual indemnity, breach of contract for failing to procure the required insurance, common law indemnity and contribution.  The latter two claims were dismissed based on a concession by counsel for third-party plaintiff that the plaintiff did not suffer a ‘grave injury’ within the meaning of Workers’ Compensation Law Section 11.  The contractual claims were also dismissed as the only contract between the third-party plaintiff general contractor and Puccio Electric was for a specified term with a specific End Date that pre-dated the date of the incident.  Accordingly, Judge Lori Sattler held that there was no contract in effect on the date of loss obligating Puccio Electric to either indemnify the third-party plaintiff general contractor or procure insurance coverage in their favor. 

Jury Verdict:                        October 18, 2023,  Nassau county, Judge Rizzo

Plaintiff’s Counsel:            HELD & HINES, L.L.P.

Defense Counsel:              O’Connor, Redd, Orlando, LLP by Partner Joseph T. Redd and Associate Lawanda Geter

In the case of Slezak v. Nassau Country Club, plaintiff Grace Slezak, following a July 21st 2014 event at the club, fell down a set of three stairs at the club’s entrance.  Plaintiff, who was 71 years-old at the time of the accident, fractured her left tibia and fibula requiring open reduction with internal fixation surgery.  Plaintiff developed cellulitis in the area of the fractures and required four months of hospitalization.   Plaintiff as a result of the accident alleged an inability to work as a realtor because of the accident, permanent lymphedema and reduced mobility.

During the liability trial, Plaintiff alleged that the subject stairs were not in conformance with the NYS Building Code, that the location of an opened door blocked access to the handrail, and that the presence of “too thick” padding/carpeting on the nose of the stair caused her to slip and fall from the top step to the tiled floor below.

Defendant contended that the NYS Building Code had no application to the steps which pre-existed the date of implementation of the NYS Code sections cited by plaintiff.  Defendant successfully moved to preclude the testimony of plaintiff’s engineer/building code experts, as they were late, based on inapplicable code provisions and/or resulted from an unnoticed and not permitted post note of issue inspection of the subject steps.  As to the condition of the carpeting on the stairs, the defense called the carpet installer, the club manager and the dining room manager, who all testified that the carpet was at all times securely attached to the step nose, that there was no “too thick” carpet condition claimed by the plaintiff and that there was ample access to the handrail  which was not obstructed by the open door as claimed by plaintiff.  The Defense elicited testimony from all witnesses that the subject carpeted stairs had been utilized over the years by hundreds of thousands of persons of various ages without problem, complaint or incident.

On cross examination, plaintiff was questioned on the multitude of theories referenced in the pleadings and the bills of particulars (trip, slip, falter stumble, debris, etc).  Plaintiff in answering the questions contended:  1) that her attorneys did it and that she did not know;   2) that she “looked all the words up on Google” and that they were “synonymous anyway.”  Plaintiff was then confronted her with her own affidavit, which she reviewed,  signed  and notarized wherein she herself adopted the inconsistent versions of how the accident occurred.  Plaintiff was also confronted with her deposition testimony wherein she testified three times that she had placed her mid-foot on the nose of the stair.  At trial she said she “misspoke” at her deposition and meant to say the “ball of her foot.”  Her errata sheet was priceless… she made about a dozen changes to her transcript, correcting singulars to plurals, minor word spelling issues, but on the critical three entries of “mid foot” placement … she never corrected it to “ball of foot” despite her purported failure to “find the right words” at deposition.    The Defense also presented pictures of the seven front steps of plaintiff’s house,  which had a column at the top of the steps  blocking  access to the rail.    While stating she and her guests had no problem getting to the rail from the platform, it was clear from the photos that was not the case, and that the Club’s alleged “blocking door” was absolutely benign compared to plaintiff’s own home step/rail configuration.   On closing argument, it was stressed “rules for thee ..but not for me.”

Last Demand:.        1.5 million  

 Last Offer:                $250,000

Jury Trial:                Three Days

Result:                      After 15 minutes of deliberation, the jury returned a defense verdict.                           

Partner Peter Urreta obtained summary judgment and dismissal of all claims against the defendant distributor of a meat grinder in Khusenov v. Prokraft Inc. and Pro-Cut, which was venued in the United States District Court for the Eastern District of New York.  Mr. Khusenov sustained an amputation injury to his arm while using a Pro-Cut KG 32 Meat Grinder while in the course of his employment as a butcher's apprentice.  The meat grinder was designed with a permanently affixed safety guard, which had been removed by a fellow employee.  While using this grinder, Mr. Khusenov’s arm was pulled into it, resulting in a severe mangling injury to his right hand and forearm which had to be amputated at the elbow. Plaintiff alleges that the meat grinder was defective and that "the defect" was the substantial factor in the plaintiff's injury.  Khusenov claimed under strict products liability, alleging, among other things, a defective design and failure to warn.     

We argued that, as supported by our liability expert, the subject meat grinder was safe and met all applicable safety and warning label standards.  Specifically, the grinder was equipped with a permanently affixed, non-removable guard to prevent a user’s hand from entering the opening where the meat would be inserted and stickers warning of the hazard.  The witnesses testified that the plaintiff’s coworkers first used a hammer and then a motorized saw to cut off the permanent metal guard.  Plaintiff variously maintained that: a safety interlock was also required; an emergency stop button should have been present; and that the warnings were inadequate.

The judge on this case had stated that any motion for summary judgment would be denied since in this products liability centered case, a "battle of the experts" would result, thereby creating a question of fact sufficient to defeat a summary judgment motion.  Thus, we pivoted and focused on precluding the testimony of the plaintiff's expert pursuant to a Daubert challenge and thereby avoiding this result.  Partner Joe Redd conducted a devastating deposition of the plaintiff’s expert, thus setting this matter up for a Daubert challenge on our motion for summary judgment.  In deciding the motion, the judge agreed with our expert’s assessment of the safety of the grinder and struck down almost all of the findings and conclusions of the plaintiff’s expert as “junk science.”  The court granted our motion and dismissed the case in its entirety.  

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.