Our Successes


SITE VISIT & CAREFUL READING OF CLIENT LEASE LEAD TO EARLY DISMISSAL OF SNOW/ICE SLIP & FALL CASE

The mission of our client, South Bronx Overall Economic Development Corporation (“EDC”) is to improve the lives of South Bronx residents by providing various social services to the community.

The EDC and its landlord were sued in Supreme Court, Bronx County, by plaintiff for her alleged injuries, including a broken forearm that was surgically repaired, arising out of a slip and fall on the adjacent sidewalk. The plaintiff claimed that snow/ice along the sidewalk was not properly cleared.

Photographs taken at the site by our office made clear that the accident occurred about 80 feet from the entrance to the EDC. The EDC was specifically not responsible for the portion of the sidewalk “beyond 50 feet from the entrance” pursuant to the maintenance clause within the lease rider.

In opposition to our Motion for Summary Judgment, neither the plaintiff nor the third-party defendants could show any evidence that the EDC shoveled or cleared any portion of the sidewalk beyond its responsible area; i.e., the 50 foot section.

Therefore, Justice Alison Y. Truitt held that the EDC could not have caused or contributed to the alleged dangerous condition as a matter of law. All claims, cross-claims and counterclaims were dismissed accordingly. (Roy v. South Bronx Overall Economic Development Corp., et al.)

March 2017



FEDERAL COURT JUDGE DISMISSES CASE FOR LACK OF NOTICE

Plaintiff claims she slipped and fell in a Bronx Target store. The incident report reflected she fell over her own feet and that there was nothing on the floor. Plaintiff produced 4 other witnesses, each of whom described the alleged condition. Judge George Daniels of the U.S. District Court (Southern District) dismissed the case on our Motion for Summary Judgment because plaintiff could not prove that Target had actual or constructive notice of the alleged condition, holding that plaintiff’s description of the alleged substance alone is not sufficient to establish defendant’s constructive notice. (Nelida Borreo-Carrasquillo v. Target Corporation)

February 2017



APPELLATE VICTORY ON CRUCIAL DISCOVERY ISSUE

The plaintiff in this personal injury case alleged she sustained neck and back injuries as well as knee injuries for which she underwent surgery as a result of a minor car accident. Plaintiff complied with discovery and appeared for an IME with a clinical orthopedist. The plaintiff then served a supplemental bill of particulars revealing that she underwent a cervical spine fusion and decompression only a few weeks before the IME. It was no surprise that the IME report stated that the designated expert was not able to adequately examine the plaintiff's spine following the surgery. We moved to compel the plaintiff to appear for additional IMEs, this time, with a spinal surgeon. The lower court denied our motion taking the position that a defendant is not entitled to unlimited physicals of the plaintiff. We appealed and the Appellate Division reversed. We argued that the defense is, under the law, entitled to unlimited physicals so long as there is a showing that they are reasonably necessary. We submitted the original IME reports plus an affidavit from the examining physicians stating that the plaintiff's spinal surgery prevented a complete IME and also that the supplemental bill of particulars was served at an opportunistic juncture so as to blindside the defense. The court found that we demonstrated the need for the additional IME by a spinal surgeon and ordered plaintiff to appear for the exam. Through our diligent efforts, we're now positioned to present a stronger defense at trial, arguing lack of causal connection. (Harris v. Christian Church of Canarsie, Inc.)

February 2017



APPELLATE DIVISION DISMISSES COMPLAINT

The Appellate Division, First Department, reversed the Trial Court’s denial of the defendants’ Motion for Summary Judgment where the records showed that the infant plaintiff who was born in April 1998 had minimal blood lead levels of 2-4 micrograms per deciliter between March 1999 and March 2000. He had a single elevated blood lead level of 13 ug/dl in February 2002. Defendants relocated the family and within three months of the elevated level abated the lead condition. The defendants showed and it was undisputed that the infant had speech and language deficits from infancy, well before his first known exposure to lead paint. The infant plaintiff continued to receive speech and language therapy and individualized education programs into high school where he achieved a strong academic report including two years of honors classes. In reversing the Trial Court’s denial of summary judgment, the Appellate Court noted that plaintiff’s pediatric neurologist failed to utilize any baseline IQ; or identify any scientific studies that specifically supported his opinion; and the plaintiff’s neuropsychologist failed to show that any of the continuing deficits are attributable to the infant’s brief exposure to lead as compared to his pre-existing condition. (Tapia v. Millshan Realty Co., LLC, 2017 NY Slip Op 01122)

February 2017



DEFENSE VERDICT IN KINGS COUNTY

Plaintiff alleged that she sustained serious and permanent injuries as a result of the failure of the defendants, Lil’D Dispatch, Inc., d/b/a Strictly Car Service, Laffier Meeyapillai and New York City Transit Authority, to provide proper assistance in transporting her to and from a physical therapy center. Plaintiff, who suffers from a disability which qualifies her for benefits under the Access-A-Ride program, claimed that defendant Laffier Meeyapillai, when picking her up after a physical therapy session, did not provide her with a proper means of ingress to the transport vehicle, and did not provide her with any assistance as she attempted to enter the vehicle. Plaintiff further alleged that the defendant, New York City Transit Authority, failed to provide proper oversight and training to operators of Access-A-Ride vehicles.

Plaintiff exited the physical therapy center and placed her walker in the trunk of the transport vehicle. While plaintiff attempted to turn to maneuver herself into the vehicle, her right leg buckled, and she collapsed forward, and her right knee hit the curb. Plaintiff sustained a fracture of the right tibia requiring open reduction and internal fixation. Plaintiff conceded that she never complained to the driver about the manner in which the vehicle was parked and never requested assistance after placing the walker into the trunk of the vehicle. The jury came back with a defense verdict. (Spiro v. New York City Transit Authority, Metropolitan Transportation Authority, Access-A-Ride, et al.)

January 2017



MSD’S COMMUNITY SERVICE PROJECT

As the holidays approached, MSD participated in the Santa Project 2016, a Community Service Project with other New York City law firms. Public School 131 in Brooklyn is a Title One school whose students are in the lowest economic status bracket. Our office answered Dear Santa letters written by kindergarten students. We then became Santa’s helpers in the school’s auditorium while the gifts were given out. We were advised that for many of the students, the gift they received from Santa would be the only holiday gift they received. Who could forget the little girl who had to be stopped fleeing the school for home in her excitement because she just couldn’t wait to show her Mom her snow boots? Not us, and that’s why MSD has decided to make this extremely rewarding Community Service Project an annual endeavor.

December 2016



PROPERTY DAMAGE - DEFENSE VERDICT

Ross Weaver settled the personal injury part of this case right before the trial began and then got a Defense Verdict on the property damage part of the case. (Geico a/s/o Murphy v. Villano and C and A Transporting, LLC, et ano.)

November 2016



2nd DEFENSE VERDICT IN SLIP & FALL CASE IN BROOKLYN (King County), NY THIS MONTH

Salvatore J. DeSantis represented our client, a Holiday Inn Express hotel. Plaintiff was visiting New York from Texas. She claimed that she slipped and fell on a just mopped wet floor in front of the elevator on the fourth floor. Plaintiff claimed multiple severe injuries and underwent a four level lumbar fusion (L2-S1), two arthroscopic ACL reconstructions/meniscal repairs and claimed severe depression and anxiety as a result of the incident. The jury returned a defense verdict on liability finding that any negligence on behalf of the hotel was not a substantial factor in causing the accident. (Casillas v. New Ram Realty and KCM Realty)

October 2016



1ST DEFENSE VERDICT IN SLIP & FALL CASE IN BROOKLYN, NY (Kings County) THIS MONTH

Plaintiff claimed that she tripped and fell on a sidewalk defect abutting our client’s premises in Brooklyn, New York, suffering a fractured humerus and injury to her cervical spine. A non-party witness testified before trial that plaintiff had, in fact, fallen upon tree-well bricks, which would be the responsibility of New York City and not our client. David B. Owens’ cross-examination made it clear that, plaintiff was trying to be mislead the jury. The jury took approximately one hour to come back with a defense verdict. (Kievman v. Machne Israel, Inc.)

October 2016



DEFENSE VERDICT ON DAMAGES DESPITE FINDING OF 100% LIABILITY AGAINST DEFENDANTS!!

Plaintiff’s vehicle was struck by our client’s van that was backing out of a driveway. Although the impact was extremely light and plaintiff’s car only sustained minimal damage, plaintiff underwent arthroscopy surgery to his left knee. He also underwent left extraforaminal approach L4/5 with decompression, discectomy, annular ablation and epidural steroid injection. He then underwent transforaminal lumbar interbody fusion including heminectomy, medial facetectomies, discectomies for decompression, microscopic techniques and posterior fusion at L4/5 as well as multiple trigger point injections. Plaintiff also underwent revision fusion at L4-S1 and L4/5 exploration of the fusion. Plaintiff was claiming that he was no longer able to work as a result of the incident.

Despite a 100 percent liability verdict, based upon the testimony of the biomechanical expert, spinal surgeon, and orthopedist, who all opined that plaintiff’s alleged injuries were not caused by this accident, the jury returned a verdict for the defendant and found that their negligence was not a proximate cause of plaintiff’s injuries.

September 2016



CONTINUING EDUCATION FOR CLIENT

Providing continuing education and guidance is an important part of our role with our clients. Alice Spitz presented an updated discussion on the New York City Sidewalk Law using specific examples from the client’s earlier and ongoing cases. The presentation was targeted to the Facilities Management Team and was also attended by Risk Management and General Counsel’s office.

September 2016



MSD NAMED ONE OF THE TOP 100 WOMEN-OWNED LAW FIRMS BY NEW YORK LAW JOURNAL

The New York Law Journal issued a Special Report on July 11, 2016 regarding minority owned law firms in New York State, and MSD was named one of the Top 100 Women-Owned Law Firms in New York. You can see their chart here. MSD is committed to promoting all forms of diversity.

July 2016



SUMMARY JUDGMENT GRANTED

Plaintiff claimed that a church usher pushed the wheelchair-bound deceased plaintiff into the church lobby and walked away. Plaintiff testified that a crowd of congregants subsequently rushed into the church sanctuary and knocked down the deceased plaintiff while he sat in his wheelchair. The Supreme Court, Bronx County, granted the summary judgment motion of the Trinity Baptist Church and found that the church did not have a duty to control its congregants, and that the accident could not have been reasonably anticipated. In granting summary judgment, Judge Kenneth L. Thompson further found that there had never been a similar circumstance at the church, or any notice of imminence of a dangerous crowd, stampedes, overcrowding, surging or chaotic crowds at any church service or function. (The Estate of Mora Moore, et al. v. Trinity Baptist Church)

June 2016



DEFENSE VERDICT IN REAR-END AUTOMOTIVE-PROPERTY DAMAGE CASE UPHELD ON APPEAL

Plaintiff’s counsel appealed the jury verdict and post-trial decision which dismissed this property damage case. The Appellate Division held that the verdict was legally supported by sufficient evidence and not against the weight of the evidence. The jury was free to credit the defendant driver’s statement that the accident was caused by an unexplained brake failure. (Gray Line New York Tours v. Big Apple Moving & Storage, et ano.)

June 2016



OISIN LAMBE HONORED AMONG INAUGURAL IRISH LEGAL 100: IRISH RISING STARS

MSD congratulates Oisín Lambe on his selection in 2016 to the inaugural Irish Legal 100: Irish Rising Stars, a listing of distinguished legal professionals under the age of 40 of Irish heritage. The first honorees selected were recognized at a reception on June 23, 2016 at the Pyramid Club in Philadelphia, PA, hosted by the Irish American Business Chamber & Network, and included a number of members of the Irish American Bar Association of New York, of which Mr. Lambe is President.

The Irish Legal 100 was established in 2008 by the Irish Voice newspaper to honor the nation’s most accomplished Irish-American legal professionals, including attorneys, legal scholars and members of the judiciary. Legal 100 Honorees include United States Supreme Court Justices John Roberts and Anthony Kennedy, and former Maryland Governor Martin O’Malley.

A special edition of the Irish Voice Newspaper was produced in June 2016 to acknowledge the achievements of those honored.

June 2016



SUMMARY JUDGMENT GRANTED, COOPERATIVE APARTMENT DUTY

Plaintiff alleged that she tripped and fell due to a buckling floor within her apartment in a cooperative building. The floor buckling was allegedly caused by water that leaked from the terrace of the apartment directly above the plaintiff’s apartment. Judge Cynthia Kern of the Supreme Court, New York County, granted summary judgment in favor of the cooperative and its property manager and found that they did not owe a duty to plaintiff to repair her floor because the Proprietary Lease states that the shareholders are responsible for repairs in their respective apartments. Judge Kern also found that the cooperative and its property manager did not perform the work that caused the buckling floor. (Michel v. 14 Beekman Place Corporation, et al.)

May 2016



MSD RECORDS A MILESTONE!

May 2016 marked a milestone for MSD, our 20th anniversary! Our roots actually extend back to the 1950’s when our founder Fred Molod started his first firm. In celebrating this milestone, we expressed our appreciation to our clients for their continued support. We truly value the relationships we have made over the years. MSD is fortunate to work with so many energetic and talented professionals who are committed to working on behalf of the clients we are proud to represent. Every day we are reminded of the opportunities we have to make a difference on behalf of our clients. We combined this celebration with a tribute to our founder, Frederick M. Molod, as he celebrated 65 years of admission to the Bar.

May 2016



CONTINUING EDUCATION

Salvatore J. DeSantis joined the faculty of the Defense Association of New York’s CLE entitled Doctors, “Lies” and Videotape: Protecting the Defense Physical Examination.

April 2016



SUMMARY JUDGMENT GRANTED IN BRONX COUNTY, LABOR LAW NOT APPLICABLE

Robert Von Hagen obtained summary judgment in a Labor Law case involving significant injuries following a fall from a scaffold. The plaintiff sued our client, a building owner, as well as their general contractor. The plaintiff was employed by a subcontractor at a worksite which was adjacent to the property owned by the client. Plaintiff started to perform pointing work to the exterior portion of our client’s wall, which faced the construction site and abutted a wall of the demolished structure. Although the client technically owned the wall and building on which the plaintiff was working, our client had no role in contracting for the work which was being performed by the plaintiff at the neighboring worksite. We moved for summary judgment arguing that the client was not an “owner, contractor or agent” as the term is defined under New York’s Labor Law, and thus, could not be liable. Title ownership of the “common wall” on which plaintiff was working was not the dispositive factor, and we were able to marshal sufficient evidence showing that our client had nothing to do with the control of the neighboring worksite. Mr. Von Hagen not only obtained summary judgment, but he did so without incurring the costs of a single deposition.

March 2016



CONTINUING EDUCATION

Salvatore J. DeSantis traveled to the Federation of Defense & Corporate Counsel (FDCC) conference in San Diego, California to join the faculty of their Winter Meeting. He presented on Cameras in the Examination Room? Level the Playing Field with the Use of IME and Surveillance While Keeping the Plaintiff from Turning the Tables on You. The roundtable discussion included the developing law on what is becoming a hot issue for motion practice in personal injury litigation

February 2016



SUMMARY JUDGMENT GRANTED IN ALLEGED DEFECTIVE ELEVATOR CASE

Plaintiff was employed in defendant’s building where he worked as a maintenance man. He alleged that the elevator mis-leveled while he was hauling long florescent bulbs, causing serious injuries. We argued, on behalf of the owners, that the plaintiff had failed to prove notice of a prior mis-leveling problem on the day of the accident. In fact, the plaintiff came forward with two signed Affidavits of co-employees that the elevator had mis-leveled in the past. The Court held that testimony of prior unreported instances of mis-leveling were insufficient to establish that the owners had notice of a dangerous condition. Similarly, the expert Affidavit of the plaintiff was deemed conclusory. Summary Judgment was granted and the complaint was dismissed. (Scurry v. Gair 1-2 L.L.C., et al.)

January 2016



SUMMARY JUDGMENT GRANTED IN LABOR LAW CLAIM

The Supreme Court, Queens County, granted the motion for summary judgment by Christopher Coleman on behalf of the Gotham Condominium and Cooper Square Realty, Inc. as to alleged violations of the New York Labor Law. Plaintiff claimed that she fell from a ladder while she was cleaning a residential condominium unit owned by one of the co-defendants after completion of renovation work performed by the general contractor, another co-defendant. The Court granted summary judgment to all defendants and found that the New York Labor Law was inapplicable because plaintiff was performing routine cleaning, and not cleaning of construction debris. The Court also found that our clients Gotham and Cooper Square Realty had no duty to plaintiff because they did not own the condominium unit. In granting summary judgment regarding Labor Law §241(6), Judge Robert McDonald found that Gotham and Cooper Square Realty had no interest in the condominium unit, did not determine which contractors to hire and were not in a position to control the work, including proper safety at the site. Judge McDonald also found that the unit owners were exempt from the Labor Law as owners of a one-unit dwelling. (Yolanda Holguin v. Kathryn Barton, et al.)

December 2015



DEFENSE VERDICT AT DAMAGES ONLY TRIAL DESPITE ABSENCE OF ANY DEFENSE EXPERT WITNESSES

Plaintiff, a 67 year old woman, sought to recover damages for personal injuries purportedly sustained as a result of a motor vehicle accident that occurred on October 31, 2012. Plaintiff was a passenger in a car that was rear-ended by the defendant’s tow truck. Plaintiff claimed that she sustained a herniated disc at L4-5 requiring fusion surgery, along with a post-surgical incisional abdominal herniation that also required surgery. In July 2012, the plaintiff underwent a lumbar laminectomy and micro-discectomy at level L4-5. An MRI taken in December 2012 demonstrated a new herniation at the same level. X-rays of the lumbar spine also showed spinal instability.

MSD was retained to represent the defendant on the eve of trial, after summary judgment on liability had previously been awarded to the plaintiff. The Answer also was stricken (after prior counsel failed to appear in court to answer the trial calendar call) and the case was scheduled for an Inquest on damages. MSD was able to have the defendant’s default vacated and the Answer restored. After securing a two week adjournment of the trial, MSD was able to obtain expert reports from a bio-mechanical expert, a radiologist, and the doctor who had previously conducted an independent medical examination of the plaintiff, and exchanged the reports with the plaintiff.

At trial, the Court precluded the defendant’s expert witnesses from testifying due to the late exchanges. Despite this, David B. Owens was able to convince the jury that the need for the fusion surgery and subsequent incisional abdominal surgery was unrelated to the accident. Physical evidence was introduced showing that the collision was minor, and testimony was elicited on cross-examination from the plaintiff’s treating physiatrist and neurosurgeon supporting the defense’s contention that the need for the lumbar fusion was indicated at the time of the July 2012 laminectomy and micro-discectomy. The jury deliberated for 45 minutes and returned a unanimous verdict in favor of the defendant. (Moise v. Marlon and Runway Towing)

November 2015



$650,000 VERDICT OVERTURNED ON APPEAL

Plaintiff was injured in a trip and fall accident in a luxury Trump building in Manhattan (owned by Equity Residential). The plaintiff claimed that the recessed carpet well in the lobby was defectively designed. The case was tried by another firm before a Judge without a jury, and the plaintiff received an award of $650,000. After the award was entered, the case was transferred to MSD to handle the appeal. Marcy Sonneborn, appellate counsel to the firm, won a reversal in the Appellate Term, First Department, and the complaint was dismissed. Thereafter, the plaintiff moved to appeal to the Appellate Division, First Department, and the motion was granted. A unanimous four-judge panel affirmed dismissal of the complaint by the Appellate Term. The Appellate Division agreed with our argument that there was nothing wrong with the carpet or the well it rested in. They also found that the plaintiff’s expert’s opinion was not probative, because it did not rely upon accepted industry standards, and did not cite to a violation of a specific safety statute. The complaint remains dismissed. (Ashton v. EQR Riverside)

October 2015



CREATIVE NO COST SOLUTION FOR OUR CLIENT

Our client received a letter from Medicare advising that all her benefits were terminated in light of her death. She made numerous phone calls trying to have the error fixed, was sent to three different places and nothing happened. She is 87 and lost Medicaid, Section 8 housing, food stamps and transportation to her doctors. Not wanting her to incur any legal expenses, Frederick M. Molod advised her to call one of the television channels. She did, she appeared on television, and her problems were quickly fixed.

September 2015



FEDERAL COURT GRANTS SUMMARY JUDGMENT IN STORE SLIP & FALL CASE

Plaintiff slipped and lost her balance on small pieces of apple slices in the Flatbush Avenue Target store. She sustained a tear of the tendon in her thigh, requiring surgery. She was employed and lost over 3 months from work. Plaintiff argued that Target was negligent based upon constructive notice of the defect, in that the slices of apple were smashed, old, worn, and mushy and must have been there for a long enough period of time to observe and clean them up. Plaintiff requested an adverse inference based on spoliation, since there was no video of the location of the accident and the only video produced was a partially blocked view of the location.

Alice Spitz for Target argued that Target had employees covering the aisles who did routine patrols every 15 minutes; that the plaintiff was in the aisle immediately prior to the slip and did not see or report the condition; and that Target had neither actual nor constructive notice of the condition and that the plaintiff could not prove how long the condition existed. Finally, MSD produced the only video that there was, which was extensive, along with an affidavit that there were no cameras placed in the main produce aisle and therefore spoliation was inapplicable.

The Court held that the sole issue was whether a reasonable jury could find that Target had constructive notice of the condition. Under New York law, “[t]he mere existence of a foreign substance, without more, is insufficient to support a claim of negligence. To get to a jury, plaintiff must provide some basis for an inference that the apple pieces were there long enough to blame defendant for the accident.” The Court held that to do so in this case, where there was no evidence of how long the condition existed, would be speculative. The Court also held that the plaintiff failed to make out a case of the failure to inspect, and denied the motion regarding spoliation since we had established that Target saved 31 minutes of footage prior to the accident and that there was no other camera in the location. (Lacey v. Target Corporation)

August 2015



DEFENSE VERDICT IN REAR-END AUTOMOTIVE-PROPERTY DAMAGE CASE & MOTION TO SET ASIDE VERDICT DENIED

This property damage claim arose from a two-vehicle collision between our client’s moving truck and a double decker tour bus. There was no dispute that our client’s driver, who was in default, rear ended the tour bus. The unique issue presented by this otherwise simple negligence claim was that our client maintained that the driver operated the vehicle without their consent and outside the scope of his employment since he used a different truck that day and got drunk after work and before “borrowing” the truck he drove in the accident. Plaintiff called the former driver as its witness. Alice Spitz argued that if the jury believed that the driver had permission to use the vehicle, then they should also believe his explanation of a sudden and unexpected brake failure as the cause of the accident. The jury accepted this argument, finding he had implied permission to drive the truck, was negligent (because he had been drinking), but that his negligence was not a proximate cause of the accident.

The plaintiff tour bus moved to set aside the verdict, arguing that the jury should never have been permitted to consider the driver’s negligence and therefore should also not have had a proximate cause question asked as the moving truck’s rear-end collision with the bus created a presumption that the driver was negligent. The Court denied plaintiff’s motion to set aside the verdict. (Gray Line New York Tours v. Big Apple Moving & Storage, et ano.)

July 2015



SUMMARY JUDGMENT GRANTED, LABOR LAW CASE

Plaintiff was injured installing windows in a penthouse apartment for a prominent attorney, Sanford Rubinstein, and fell off a scaffolding inside Mr. Rubinstein’s condo apartment. Plaintiff sued our client, the Condo Board defendants, as well as Mr. Rubinstein. All parties moved for summary judgment. Mr. Rubinstein claimed the single family home-owner’s exemption under the Labor Law. We, representing the Condo Board defendants, relied upon a recent Court of Appeals case, Guryev, in which Condo Board owners were not held to be “owners” under the Labor Law. Under the Guryev case, and also in this case, the Condo Board did not supervise the work done in the individual condo owner’s apartment. The Supreme Court agreed with us. Even though the Condo Board hired and paid Mr. Rubinstein’s contractor, the Condo Board ultimately billed the individual condo owner for the work. The Court, having determined that the work was done for the benefit of the individual condo owner and not for the benefit of the Condo Board, dismissed the Condo Board from the case. The cross-claims were also dismissed. (Terry v. Douglas Elliman-Gibbons & Ives, Inc., et al.)

June 2015



SUMMARY JUDGMENT GRANTED IN SLIP & FALL DOWN STAIRS CASE

Plaintiff, a tenant in the defendant’s building, alleged that she slipped and fell on the stairwell within the defendant’s apartment building and injured her lumbar spine, resulting in back surgery. Discovery revealed that when the plaintiff stepped down onto the step in question, a piece of the ceramic tile flooring became dislodged and flung out from the step. The plaintiff alleged that the defendants failed to properly maintain the stairwell and allowed a defect to exist which caused her fall. However, plaintiff admitted that she traversed the staircase twice a day for the prior six months and had never had any problems or noticed any defective condition. Likewise, in support of our summary judgment motion, we submitted the testimony of the property manager as well as an affidavit from the live-in superintendent which established that the subject steps were inspected within thirty minutes prior to the plaintiff’s fall and that they were not hazardous at that time. The plaintiff attempted to raise an issue of fact by submitting the affidavit of a purported expert in engineering, but we successfully argued that the expert’s opinions were not sufficient to show any visible defect or hazardous condition such that the defendants should have or could have been aware of it and been charged with notice. The Court granted summary judgment to the defendants. (Segura v. Scattered Sites, LP)

May 2015



SUMMARY JUDGMENT GRANTED, ICE CASE

Plaintiff testified that she slipped AND tripped on ice “embedded” in an allegedly mis-leveled crack in the sidewalk abutting our client’s high rise apartment building in Manhattan. The building superintendent testified that about one hour before plaintiff’s accident, he inspected the sidewalk and found no dangerous conditions. An engineer inspected the sidewalk on our behalf and opined that the alleged mis-leveling was insignificant and did not constitute a trip hazard. A meteorologist provided certified climatic records showing that plaintiff’s accident occurred several minutes after snow began to fall. The Court found that our client had no opportunity to commence snow removal at the time of the accident and plaintiff did not dispute any evidence to refute the opinions of the engineer and meteorologist. (Adario-Caine v. 69th Tenants Corp., et al.)

May 2015



MSD’S COMIC RELIEF

MSD participated in the “Red Nose Day” campaign: Have a Good Laugh for a Good Cause (photo below). Money raised during this campaign goes to the Red Nose Day Fund, which distributes grants to charities that benefit children and young people in the US and some of the poorest communities in the world. Learn more about the charities and how to donate at: www.rednoseday.org/charities.

May 2015



SUMMARY JUDGMENT GRANTED, MOLD CASE

Plaintiff testified that he developed a host of illnesses after moving into our client's high rise apartment building in Manhattan. As a result of his suspicion that mold was making him ill, the plaintiff retained an environmental testing company. The company found visible mold in the hallway near his apartment, and mold underneath sheetrock near his bed. We retained the services of a health and safety expert, who opined that mold in the hallway and underneath sheetrock was not sufficient exposure to cause illness, particularly as the mold in the plaintiff’s apartment was not airborne (it was covered by sheetrock), and the most that plaintiff could prove was "general causation". The courts in New York have held that general causation is insufficient to sustain a claim based upon mold exposure. The complaint was dismissed. (Bergman v. EQR 160 Riverside, et al.)

May 2015



DEFENSE VERDICT

A New York County jury found that the driver of the defendant’s truck was negligent because he’d been drinking before taking his employer’s truck for a personal errand, but that the negligence was not the proximate cause of the accident. Despite the fact that he hit a double decker bus on the Manhattan Bridge in the rear, Alice Spitz successfully argued that if the jury believed the driver’s testimony that he had implied permission to use the vehicle after hours on a personal errand, that they should also credit the driver’s claim that the brakes failed suddenly and unexpectedly and therefore provided a non-negligent explanation for the accident. The case had previously gone up to the Appellate Division on the legal issue of permissive use –which was held to be a question for the jury. (Gray Line v Big Apple Moving & Storage)

April 2015



DEFENSE VERDICT UPHELD BY THE APPELLATE DIVISION

A judgment in favor of the defendant in a Labor Law 240(1) action was upheld on appeal. The plaintiff, a laborer, fell off the top of a truck where he was breaking up concrete. His employer, our client, was a concrete company, a sub-contractor on the job. The plaintiff argued that he should have been provided with proper protection, because he fell from a height of eight feet. We argued that Labor Law 240(1) did not apply because the plaintiff “was to play no role in the actual erection of the bus shelter” as the plaintiff’s work only involved demolition, and further that the plaintiff was not in the class of persons protected by the Labor Law. The jury found that the defendant violated Labor Law 241 (6) but that the violation was not a proximate cause of the injury. Plaintiff argued this was inconsistent. The Appellate Court disagreed and the judgment dismissing the complaint was affirmed. (Siguenza v Cemusa, Inc.)

April 2015



SUMMARY JUDGMENT WIN AFFIRMED ON APPEAL

The plaintiff alleged that he was injured while pushing a loaded hand-truck up a delivery ramp. On behalf of our client, the property owner, we moved for summary judgment on the grounds that the ramp was not defective. We relied on the opinion of an expert engineer who performed tests on the ramp’s surface. The plaintiff retained an engineer to rebut our motion. The plaintiff’s engineer argued that the ramp was too slippery and smooth without testing it. The Appellate Division held that those opinions were without merit. The plaintiff’s engineer also argued that the ramp violated the NYC Building Code because it was too steep, however the Appellate Division ignored this argument because it amounted to a new theory of liability raised for the first time on appeal. The complaint was dismissed. (Ceron v Yeshiva University)

March 2015



SUMMARY JUDGMENT MOTION GRANTED, SLIP AND FALL

The plaintiff was injured while she was the guest of a member of the Sea Gate Beach Club. While carrying her 2-year-old granddaughter, the plaintiff was stepping up from the sand of the beach area onto a wooden boardwalk. Her foot got caught on the edge of the boardwalk and she fell, sustaining a fracture/dislocation of her right hand. The plaintiff alleged that the boardwalk was improperly designed and constructed resulting in a dangerous condition. Our client, the Sea Gate Association, is the owner of Sea Gate, a private community in the Coney Island area of Brooklyn and is the owner of the waterfront property where the Beach Club is located. In our Motion for Summary Judgment, we argued that the lease of the Sea Gate beach premises from the Association to the Sea Gate Beach Club required the Beach Club to fully maintain the Beach Club premises, and that therefore, our client did not owe any duty of care to the plaintiff. The co-defendant Beach Club argued that the lease required the Association to indemnify the Beach Club for claims such as that by the plaintiff. Our motion was granted, dismissing the plaintiff’s complaint and the co-defendant’s cross-claim against the Association was also dismissed. (Kathleen Gross v. Sea Gate Beach Club and The Sea Gate Association).

January 2015



SUMMARY JUDGMENT MOTION GRANTED – MOTOR VEHICLE ACCIDENT

Plaintiff, a passenger in an ambulette, sued our clients, the ambulette driver and owner, as well as the driver and owner of the vehicle that we alleged struck the ambulette. Plaintiff moved for summary judgment against the driver of the other involved vehicle, and we cross-moved to have all claims and cross-claims against the ambulette driver and owner dismissed for lack of negligence. We made this motion prior to conducting any discovery in order to keep defense costs low. The co-defendant opposed the motion as premature due to lack of discovery, but we highlighted how they failed to point to any negligence on the part of the defendant ambulette driver or owner. The trial court agreed that there was no evidence of negligence on the part of the ambulette defendants, and granted our Motion for Summary Judgment, dismissing the Complaint and cross-claims against us. (Joseph v. Doski and Medi-Cab, Inc.)


IT’S MOOT, BUT IT MATTERS - SHARING OUR EXPERTISE WITH A NEW GENERATION

MSD Founding Partner Frederick M. Molod participated as a Judge in the Yale Mock Trial Association’s Annual Tournament in New Haven, Connecticut and issued rulings from the bench. He was very impressed with the amount of work the students put into the mock case, and the caliber of the talent.

December 2014



WON REVERSAL IN THE APPELLATE DIVISION, COMMERCIAL VEHICLE ACCIDENT

The Supreme Court granted plaintiff’s Motion for Summary Judgment in this motor vehicle accident case, on the grounds that our client, a driver of a commercial van, struck the vehicle, in which plaintiff was a passenger, in the rear on the highway. The lower court also dismissed our third-party action against the driver/owner of plaintiff’s host vehicle. We appealed to the Appellate Division, relying on the non-party Affidavit of an eye witness to the accident, arguing that there was indeed a triable issue of fact with respect to the issue of proximate cause. The Appellate Division agreed and ruled that the Supreme Court improperly granted the plaintiff’s motion for summary judgment on the issue of liability and improperly dismissed the third-party complaint. We were also awarded costs for our client. (Spinosa v Golden Touch Transport).


SUMMARY JUDGMENT GRANTED AND COMPLAINT DISMISSED – PREMISES LIABILITY

We were successful in persuading the Supreme Court that plaintiff’s Complaint against the owners of commercial real property adjacent to a sidewalk should be dismissed. We argued that the sidewalk defect was at most a trivial defect. In addition, we argued that the defendants-owners did not have notice of the supposed defect. We relied upon the Affidavit of an expert engineer who inspected the sidewalk and found no defects. We also relied upon the Affidavit of the owner’s property manager, who inspected the sidewalk and found no defects. The property manager testified that she even tried to trip on the red pavers and could not. Nor did the testimony regarding the alleged defect describe a crack which had the characteristics of a trap or a snare. We argued that the photographs supported a finding that the alleged defect was de minimus and that the alleged defect looked like something you would find in a typical well-maintained sidewalk in New York City. The Court agreed and dismissed the Complaint. (Sturm, Marian V. Myrtle Catalpa LLC, et al.)


SYNAGOGUE NOT LIABLE FOR SLIP AND FALL ON CAKE AT A BAR MITZVAH

Plaintiff was attending her grandson’s bar mitzvah at the synagogue we represent. The caterer for the party was also a defendant. The testimony revealed that the synagogue, although the owner of the property, had no involvement in the bar mitzvah party where plaintiff slipped and fell. The Supreme Court granted our motion for summary judgment, agreeing with our argument that since the synagogue did not have anyone working at the party, did not have anyone involved in the set-up of the party, did not have anyone responsible for cleaning at the party, and did not have actual or constructive notice of the cake on the floor before plaintiff fell, the case should be dismissed. (Nektalova v. Bokharian Jewish Community Center)

November 2014


SUMMARY JUDGMENT GRANTED, SNOW & ICE CASE

Plaintiff testified that ice caused him to slip and fall on a sidewalk at Jacobi Medical Center, between a building owned and occupied by the City of New York and a building the City leased to our client, Yeshiva University. All of the City witnesses testified that the City was and is responsible for snow and ice removal from the sidewalk between the buildings, including the area of plaintiff’s accident. In opposition, the plaintiff argued that the terms of the lease state that Yeshiva University is responsible for snow and ice removal on the sidewalk abutting the leased property. The Supreme Court, Bronx County, granted summary judgment in favor of Yeshiva University and found that the area of the accident was not abutting the leased premises, and therefore not covered by the lease provision cited by plaintiff. Therefore, Yeshiva University was not responsible for snow and ice removal at the location of the accident. (Hong v. City Of New York, et al.)


SHARING KNOWLEDGE WITH INSURANCE PROFESSIONALS – RETAIL & HOSPITALITY LITIGATION

Alice Spitz delivered a presentation on Security Surveillance Video and Spoliation at the Harmonie Group’s Chicago, Illinois conference. She explored the issues which premises owners face regarding the preservation of video and the potential consequences of the failure to preserve footage, as well as the disclosure and use of video in litigation. If you’re interested in having MSD address your claims department on these or other issues, please contact us at attorneys@molodspitz.com.


RAISING AWARENESS FOR BREAST CANCER

The entire firm (see photograph below) observes Breast Cancer Awareness Day and remembers our associate, colleague, and friend, Eileen Roche-Clarke. In her honor, MSD donated to SHARE, an organization dedicated to helping women who have been diagnosed with breast and ovarian cancer.

October 2014


HARMONIE'S FALL CONFERENCE

Alice Spitz, a Harmonie Group past president, attended the Group’s Fall Conference in Seattle. The Harmonie Group is an affiliation of independent law firms providing a broad spectrum of high quality legal services to corporations, insurance carriers, and third party claim administrators across the United States, and internationally as well. You can access the Harmonie Group's law firm directory here.

September 2014


KEEPING INSURERS INFORMED – LIENS & PERSONAL INJURY SETTLEMENTS

MSD emailed their clients about a recent case impacting settlements in personal injury cases. You can read this article we prepared, The Latest Word on the Assertion of Liens by Insurers in NY Personal Injury Settlements is Not Necessarily the Final Word, here. While MSD measures our success in favorable verdicts and economically beneficial case results, we also dedicate ourselves to monitoring and apprising our clients of updates to relevant law.

August 2014


SUMMARY JUDGMENT MOTION GRANTED – COURT FOUND PLAINTIFF ASSUMED THE RISK

Plaintiff, a young man with autism, brought an action against the New York Institute of Technology (NYIT), where he was enrolled in a program for special-needs young adults. Plaintiff was injured while working out in NYIT’s gym, at night, and while unsupervised. Plaintiff’s expert claimed that plaintiff’s accident would have been avoided had he been supervised. We argued that plaintiff had the mental capacity to understand the consequences of his actions while in the gym, as he worked out on a regular basis. We also argued that plaintiff and his parents were told that students did not have one-on-one supervision in the NYIT program which plaintiff attended. The trial court agreed that plaintiff assumed the risks of his actions, and granted our Motion for Summary Judgment, dismissing the Complaint. (Panet v. New York Institute of Technology)

July 2014


MSD NAMED ONE OF THE TOP 100 WOMEN-OWNED LAW FIRMS BY NEW YORK LAW JOURNAL

The New York Law Journal issued a Special Report on June 17, 2014 regarding minority owned law firms in New York State, and MSD is ranked as the 11th largest Women-Owned law firm in New York. You can see their chart here. MSD is committed to promoting all forms of diversity.

June 2014


ARBITRATION VICTORY

In this three-vehicle accident, the petitioner claimed our client struck his vehicle in the rear, pushing it into the vehicle driven by the co-respondent. We relied on the police report and argued that although the co-respondent claimed that the petitioner stopped to allow him to merge into the petitioner’s lane of travel, this could not possibly be true, as the petitioner claimed that the co-respondent struck him while merging. The arbitrator found 0% liability on the part of our client and 100% liability on the part of the co-respondent. (Hereford Insurance Company v. Old Republic Insurance Company)

May 2014


DEFENSE VERDICT ON BEHALF OF A TRACTOR-TRAILER INVOLVED IN A REAR END COLLISION

In a case tried to verdict by Teresa A. Gruber, the plaintiff alleged that the SUV she was driving was struck in the rear by a tractor-trailer while traveling in the middle lane of the Long Island Expressway. The defendant, Jorge Rosa, an employee of JDJ Trucking, claimed that while he was traveling in the middle lane of the Long Island Expressway, the plaintiff came from the left and cut him off so closely that despite applying his brakes, he was unable to avoid striking the rear of the plaintiff’s SUV. The jury found that the defendant driver was not negligent, but acted reasonably in the face of the plaintiff’s sudden lane change. Motions for summary judgment were earlier denied. The injuries alleged included recommended right rotator cuff surgery, lumbar herniations, cervical herniations, eighty-six (86) epidural injections to the cervical and lumbar spine, and a projected $3,000,000 in future medical care. The plaintiff’s demand to settle was $250,000 and the offer was $25,000. The jury deliberated for 48 minutes before returning with a defense verdict. (Daniel v. JDJ Trucking, Corp. and Jorge Rosa)


April 2014


LITIGATING CONSTRUCTION SITE ACCIDENTS

MSD's Alice Spitz was a faculty member in the New York State Bar Association’s CLE seminar Litigating Construction Site Accidents: The Law and The Trial, a program to educate attorneys unfamiliar with litigating such cases. The topics she addressed included construction contracts, New York’s grave injury statute, insurance indemnification issues, and ethical concerns arising during the defense of clients involved in construction litigation.


March 2014


THE TRANSPORTATION LAWYER PUBLISHED MSD ARTICLE

MSD's Terri Gruber's article, co-written with Noelle M. Natoli-Duffi and entitled "Ethical Considerations Facing Transportation Attorneys", was published in the February 2014 issue of The Transportation Lawyer. You can read it here. She discusses conflicts of interest which often arise when representing both corporate insureds as well as drivers and other conundrums which routinely face transportation attorneys and the ethical rules applicable to those situations.


February 2014


SLIP AND FALL CASE DISMISSED IN A 22 PAGE SCATHING OPINION

Plaintiff claims that on February 24, 2008, he slipped and fell on an icy sidewalk adjacent to property located in Brooklyn, New York. The plaintiff, having settled his slip and fall action against the unincorporated condominium association, amended his Complaint to include the individual condo unit owners. We argued both that he was judicially estopped from proceeding against the individual condo unit owners, as well as that individual condominium owners are not liable to a pedestrian who falls on an adjoining sidewalk. The Court pointed to the case law we cited in its long decision and found that the individual unit owners are not responsible for maintaining the sidewalk. Plaintiff’s Complaint was dismissed. (Mohadeb v. Bedford Apartments, et al.)


HARMONIE'S WINTER CONFERENCE

Alice Spitz, Harmonie Group Past President, attended the Group’s Winter Conference in Florida. The Harmonie Group is an affiliation of independent law firms providing a broad spectrum of high quality legal services to corporations, insurance carriers, and third party claim administrators across the United States, and internationally as well. You can access the Harmonie Group's law firm directory here.


January 2014


HAPPY HOLIDAYS!

The entire MSD family wishes you and yours a happy and safe holiday season. May you have a New Year filled with Good Health, Peace, Joy and Prosperity!


December 2013


NEW YORK LAW JOURNAL PUBLISHED MSD ARTICLE ON LAW PROHIBITING VIDEOTAPING OF IMES

Firm member Alice Spitz’ article The Law Does Not Support Videotaping IMEs Under Ordinary Circumstances was published in the New York Law Journal. In response to an article advocating the secret videotaping of IMEs by plaintiffs' attorneys, Ms. Spitz analyzes the law which actually prohibits such conduct. Additional reprints of the article are available and we would be happy to provide them upon request.


MSD MATCHES EMPLOYEE DONATIONS TO THE PHILIPPINES

Our hearts and minds are with those in the Philippines following the devastation wreaked by Typhoon Yolanda (Haiyan).



APPEAL GRANTED: SLIP & FALL CASE DISMISSED

Plaintiff, a tenant in a high-rise apartment building in Manhattan, brought an action alleging that her trip and fall on a carpet well in the lobby of her building was as a result of a defective design. Plaintiff produced an expert at trial who had designed carpet wells for Macy’s, and other commercial establishments, and who testified, without rebuttal, that the owner’s carpet well was defectively designed. Plaintiff sustained a fracture of the cheek bone which her doctors opined caused facial nerve damage and R.S.D. The judge, after a bench trial, awarded plaintiff $650,000. We were given the matter for appeal and successfully argued that the owner did not have notice of the alleged defect. Furthermore, there was no industry standard for the construction of carpet wells, and no statutes had been violated. In the alternative, we agued that the award was excessive. The Appellate Term in Manhattan reversed the judgment and dismissed the complaint. (Ashton v. EQR)

November 2013


PLAINTIFF DEMANDS $1.2 MILLION AT MEDIATION - RESULT: SUMMARY JUDGMENT MOTION GRANTED AND SLIP & FALL CASE DISMISSED

Plaintiff claims that he slipped and fell on a metal ramp while making a Coca-Cola delivery at our client’s premises on Lexington Avenue in New York City. Plaintiff testified that it had stopped raining 10 minutes before he arrived and loaded 8 boxes onto a hand-truck. The total load of the hand-truck was 160 pounds and plaintiff took one step onto the ramp and slipped backwards. The hand-truck fell on top of his legs. Plaintiff refused to move from his $1.2 million dollar demand. In support of our motion for summary judgment, our engineer, certified in the Tribometer, measured the co-efficient of friction in wet and dry conditions and found that average slip resistance of the ramp under dry conditions was found to be 0.81 and 0.69 under wet conditions. Slip resistance value of 0.5 or greater is considered to be a safe value. The Court agreed that we successfully established that there was no dangerous condition in existence when plaintiff slipped and fell, and dismissed plaintiff’s Complaint. (Ceron v. Yeshiva University)

October 2013

COURT OF APPEALS AFFIRMS DISMISSAL OF COMPLAINT (TWICE)

Sato v Ippudo Restaurant was heard by the Court of Appeals on the basis of a two judge dissent in the Appellate Division. The Court of Appeals affirmed the majority decision and dismissed the Complaint. This case involved a patron who fell down an entire flight of stairs (leading to a restroom in the basement) and sustained devastating injuries. The plaintiff argued that the corridor leading to the basement stairs was too dark for him to see the top of the stairs. The walls were painted black, and the lighting was dim. Nevertheless, the Appellate Division noted that there were warning signs at the top of the stairs, which “establishes adequate warning as a matter of law.” In addition, plaintiff’s claims of structural defects were held not to be probative of a dangerous condition since “… the provisions of the Administrative Code …are inapplicable because the subject stairs are not ‘interior stairs’ as defined by the Code.” UPDATE: Plaintiff moved to reargue the decision, but in January 2014, the Court of Appeals denied the motion for reargument, awarding costs to our client.

September 2013

SUMMARY JUDGMENT GRANTED IN SLIP & FALL CASE

Plaintiff claims a broken hip from a fall in the dining room of our client’s restaurant in New York City due to dim lighting and an abrupt transition between a tile floor in the anteroom and the dining room’s wooden floor. Our engineer conducted skid testing and light testing and found that the lighting exceeds the statutory requirements and the floor exceeds the accepted safe value. Our Motion for Summary Judgment was granted and plaintiff’s case dismissed. UPDATE: in December 2013, Judge Scarpulla denied plaintiff’s Motion to Renew and Reargue his decision. (Aronica v. Marco Polo Management, et al.)

July 2013

MOLD CASE DISMISSED

Two plaintiffs claimed injuries from exposure to mold in their apartment in our client’s building. The Court granted our Motion for Summary Judgment which argued, with the support of our medical experts, that there was no specific causal relationship between plaintiffs’ exposure and their claimed illnesses, and further that plaintiffs’ expert testimony should be precluded. The Court precluded plaintiffs’ expert witness testimony, finding that neither of the plaintiffs’ “experts” established their credentials and dismissed the Complaint, finding that plaintiff could not establish the element of proximate cause. (Gallagher & Schuetrum v. Ruradan Corp.)

May 2013

OUR LAW FIRM IS SO PROUD TO ANNOUNCE

We’re extremely proud to announce that the firm's founder, Frederick Molod, was honored by the Jewish Lawyers Guild with the Tzadik Award.

Tzadik means "righteous one", a leader and teacher of a generation.

We're so pleased to share this photograph below from the occasion.

All of us at MSD strive to emulate the example he has set for us.

(See also, New York Law Journal, Mar. 22, 2013 at p.6, col 2. www.NewYorkLawJournal.com/PubArticleNY.jsp?id=1202593072597)



March 2013

VOLUNTEERING, TO PAY IT FORWARD

MSD Partner David B. Owens was a judge for the Yale Mock Trial Association’s AMTA Regional Competition in New Haven this month.

January 2013

Past successes are not a guarantee of future performance

Our Successes archived artices:
2011 - 2012
2009 - 2010
2007 - 2008
2005 - 2006
2003 - 2004
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