Molod Spitz & DeSantis, P.C.


Case Dismissed: USTA Floor Grate Not City's Responsibility

MSD was successful in having plaintiff's Complaint against the City of New York dismissed in an action in which it was the sole defendant. Plaintiff was a chef, employed to prepare food for the U.S. Tennis Open located at the Arthur Ashe Tennis Stadium. The USTA (United States Tennis Association) leases the stadium from the City pursuant to a 99 year lease. Plaintiff argued that the grate covering the floor drain in the stadium's kitchen was defective, causing him to slip and fall and spill boiling water, resulting in severe burns to his torso. Alice Spitz and Marcy Sonneborn argued that the City of New York exerted no control over the construction or installation of the kitchen floor and grate. The City's Building Department's approval of the overall kitchen floor plan was in its regulatory capacity and not as a landowner. The Court agreed and dismissed the Complaint. Buhler v. City

December 2006

 

Case Dismissed: Hazards Inherent in Laborer's Work

Despite the difficulty of obtaining summary judgments for defendants in New York Labor Law cases, MSD was successful in having the complaint against its client - Methodist Church of Glen Cove - dismissed under both Labor Law and common law. MSD partner Salvatore J. DeSantis and Marcy Sonneborn argued that the plaintiff could not prevail under Labor Law §240(1) because the risk of injury was not as a result of an elevation - the plaintiff had already descended a ladder and was back on the ground when sections of rotted soffit and roof fell and injured him. The Court agreed with MSD that Labor Law §241(6) did not apply because a Section of the Industrial Code was not violated. MSD also argued that neither Labor Law §200 nor the common law were violated because an owner's duty does not extend to hazards that are inherent in the work the laborer is to perform. MSD's client was the sole defendant in the case of Hansen v. Trustees of The Methodist Episcopal Church of Glen Cove, et al.

November 2006

 

Educating Our Insurance Company Partners

In MSD's continuing effort to provide additional service to clients, associate Stacey E. Steinberg and partner Alice Spitz gave a presentation on New York's no-fault insurance law for the Claims Staff of Harco National Insurance Company and TransGuard Insurance Company of America. Other clients interested in having MSD address their claims departments should contact attorneys@molodspitz.com.

November 2006

 

Case Dismissed: Basketball Facility Not Negligent

A 22 year old suffered a heart attack and died while playing basketball in his employer's evening league at MSD's client's facility Basketball City New York, LLC. His estate claimed that Basketball City New York was negligent in failing to maintain emergency resuscitation equipment and staff trained in its use. MSD partner Alice Spitz and Marcy Sonneborn successfully argued that the case should be dismissed because plaintiff assumed the risk of playing sports, the basketball facility didn't cause the decedent plaintiff to suffer a heart attack; and because the law did not then require such a facility to have CPR equipment. Colon, as Administratrix of Hernandez Estate v. Basketball City New York, LLC.

October 2006

 

Case Dismissed: Amateur Softball Players Assume Risk of Injury

In a lengthy decision based on the current law involving "assumption of the risk," Nassau County Judge Tammy Robbins dismissed the case against MSD's defendant client in Gillen v. Nassau Semi-fast Softball League. The Court agreed with MSD partner Alice Spitz and Marcy Sonneborn that with the plaintiff's long history and experience as a softball player, he assumed the risk of injury while playing softball in the defendant's league. The Court considered and rejected the conclusion of the plaintiff's expert that amateur softball players do not assume the risk of base runner crashes, as not supported by the evidence, and disallowed the plaintiff from recovering damages for two cervical spine surgeries.

October 2006

 

Case Dismissed: Statute of Limitations Had Run

Summary judgment was granted to MSD's client in a case involving an alleged trip and fall on a sidewalk in Manhattan. The plaintiff claimed that MSD's client in Ebner v. MHP Land Associates v. Spring Scaffolding, Inc. erected a sidewalk shed over an expanse of sidewalk and that the weight of the shed created a defect in one of the flags. The plaintiff further alleged sustaining serious injuries from tripping over the flag. Having originally sued the City of New York, the owner and lessee of the premises, the plaintiff then sued MSD's client directly after they were added as a third-party defendant. MSD senior associate Sean P. King successfully argued that the three-year Statute of Limitations had run by the time MSD's client was brought into the case and that the case did not meet the criteria for "relation back."

October 2006

 

Four Bronx County Claims Dismissed!

The claims of four plaintiffs in a Bronx County lawsuit, stemming from a motor vehicle accident, were dismissed following a motion made by Julie Molod. Justice Sallie Manzanet-Daniels granted the motion for summary judgment, based upon the failure of all four plaintiffs to satisfy the serious injury threshold of the no-fault insurance law. Although the plaintiffs all stopped treatment soon after the incident, they returned to a physician in 2006, after the subject motion was filed. The physician submitted Affidavits concluding that each plaintiff had suffered serious injuries as a result of the incident. Justice Manzanet ruled that the physician affidavits were clearly "tailored" in an attempt to defeat the motion and did not provide an explanation for the plaintiffs' cessation in treatment in 2002. Plaintiffs failed to reasonably explain why there was a gap in treatment for over three years. Silverio v. Leavitt, et al.

October 2006

 

Case Dismissed Against Tenant who Fell, Claiming a Defect in Concrete Abutement

Plaintiff Paramjit Lal, a tenant in defendant's two-story house, claimed that he fell when he sat down on a concrete abutment adjoining the front steps of the premises. As he sat down, the abutment "came loose" and slipped, causing him to fall. Partner Alice Spitz, Associate Stacey Steinberg, and appellate counsel Marcy Sonneborn, convinced the Supreme Court and the Appellate Division that the defendant had no notice of the alleged defect and there was no evidence that he created it. The Supreme Court granted summary judgment and the Appellate Division affirmed. Our client was the only defendant in the action. The Appellate Division held that the owner established his entitlement to judgment as a matter of law based upon evidence that he did not create the alleged dangerous condition or have actual or constructive notice of its existence. We were particularly pleased that the Court found the opinion of the plaintiff's expert engineer to be "wholly conclusory".

October 2006

 

Court Grants MSD Motions & Dismisses Two Horrific Burn Cases Due to Lack of Evidence

Lack of evidence was key to two dismissed cases against MSD clients, both cases involving severe burns. In Rosencrans v. Kiselak, et al. in Orange County, MSD partner Alice Spitz successfully argued that there was no evidence that MSD’s client – an apartment building’s water heater repair company – caused a condition in a bathroom sink that led to third-degree burns to a three year old. In Braun v. County of Orange, et al., Ms. Spitz and Marcy Sonneborn argued that MSD’s plumbing contractor client had a limited scope of employment renovating a portion of a nursing facility in the 1990s. The judge agreed that there was no evidence that MSD’s or other contractors in the case had installed improper equipment that may have led to the excessive hot water which burned the elderly plaintiff– leaving the County as the sole defendant.

September 2006

 

Case Dismissed Against Northeast Conference of Seventh Day Adventists

MSD associate Eileen Budd was awarded summary judgment dismissing a case against the firm’s defendant client in Pressley v. Northeast Conference of Seventh Day Adventists. The plaintiff made a claim for relief under the Americans with Disabilities Act, alleging that she was discriminated against because of her gender and because of an alleged medical condition. The plaintiff had previously brought a similar action in the United States District Court for the District of Columbia, yet attempted to re-file again in the United States District Court for the Eastern District of New York. The court held that the plaintiff did not comply with the filing requirements of the Equal Employment Opportunity Commission (“EEOC”), a prerequisite for bringing suit under Title VII of the Civil Rights Act of 1964, and the excuses given by Plaintiff for her failure to timely file with the EEOC were an insufficient basis for the Court to invoke equitable tolling, which would have allowed Plaintiff to continue prosecuting her untimely filed action. Her remaining federal and state law claims were barred by the statute of limitations.

September 2006

 

Credibility Is Key in Defendant’s Verdict

Credible testimony by the defendant in a case tried in Bronx County Supreme Court played a significant role in a jury’s unanimous verdict in favor of MSD’s client. Tried by MSD partner Irwin Miller over eight days, the case of Haynes/Lyons v. Demera was a tough one: a defendant who claimed that the plaintiff’s car rolled back and contributed to a rear impact. Acknowledging a minor impact, the defendant testified that he was traveling at very low speed with negligible damage to both vehicles. Corroborating his testimony were photographs, which reflected the absence of physical damage. Refuting claims of significant injury to the plaintiff and passenger, defense experts including a neurologist, orthopedist and diagnostic radiologist established the absence of permanency, disability and functional impairment.

August 2006

 

MSD Partner Provides Expert Opinion in NYLJ Article

“Are Majority, Dissent That Far Apart?” asks MSD partner, Salvatore DeSantis, in the August 3 New York Law Journal. The article focused on a First Department decision in the case of BP Air Conditioning Corp. v. One Beacon Ins. Group, “a significant insurance dispute which arose when a construction worker fell on an oil slick on the 39th floor of the then existing World Trade Center.” In the article, Mr. DeSantis analyzes the “uncharacteristically contentious majority and dissenting opinions.” He concludes that, “As the appellate courts continue to wrestle with public policy considerations along with intertwined issues of insurance policy interpretation and interpretation of contracts between contractors/owners and their subcontractors, counsel must ensure that their clients obtain appropriate coverage and insurers charge appropriate premiums.”

August 2006

 

No Written Contract Means No Case Against MSD Client

The Supreme Court, New York County, ruled in favor of United National in a case in which a subcontractor sought “additional insured” status under the company’s policy. MSD partner Salvatore DeSantis successfully argued that a written contract was required before United National would provide additional insurance for any person or organization. Since there was no written contract, MSD’s motion for summary judgment was granted. BFP One Liberty Plaza Co. LLC and Turner Construction Company v. Continental Marble, et al.

August 2006

 

Snow and Ice Case Dismissed on Hottest Day of the Year!

The verdict in a trial over "clear ice" on a sidewalk came in on the hottest day of the year, and it was unanimous in favor of MSD's defendant client. The plaintiff in Singh v. Tabernacle of Prayer, claimed that the defendant failed to properly shovel and salt the area of sidewalk where she slipped and allegedly sustained a knee injury requiring surgery. She brought the action against MSD's client under § 7-210 (b) of the Administrative Code of the City of New York, which in 2003 transferred the responsibility for the maintenance of sidewalks in the five boroughs from the City to the abutting property owner. Senior Associate Sean P. King tried the case in Queens County, where a jury decided that the defendant was not negligent.

August 2006

 

Plaintiff's Case Didn't Hold Water

Chris Christofides obtained a directed verdict in favor of MSD client, an apartment corporation that was one of several defendants in a case at trial involving alleged water damage. The plaintiff was paid for water damage to her apartment under the provisions of her homeowner's policy, yet alleged that there was subsequent damage that she did not claim. The Court - having denied admission into evidence of the plaintiff's hand-written diaries - ruled in favor of each of the defendants. Gamiel v. Harbutt, et al.

July 2006

 

MSD Success For Church Client Holds Strong

The Appellate Division, Second Department, affirmed an order granting MSD's motion to dismiss a case against its client, Seventh Day Adventist Church. This is the second time the case has been re-argued; in March 2005, the Supreme Court in Queens County upheld its original finding on behalf of the defendant.

The plaintiff, Glenn Marr, claimed that the defendant failed to prevent a fire set by a trespasser - arson that allegedly caused the plaintiff to sustain an aortic dissection. In November 2004, the Court granted Salvatore J. DeSantis' motion for summary judgment after finding that the Church did take sufficient minimal security precautions, and that there was no causal connection between the plaintiff's aortic dissection and the alleged negligence.

July 2006

 

MSD Gets Dismissal in High-Stakes Case

In an action where the settlement demand was $10 million, MSD partner Alice Spitz - working with MSD appellate counsel Marcy Sonneborn - obtained a dismissal for client Ambassador Fuel. Ambassador was installing a new boiler and burner system at property owned by co-defendant Holind Realty.

The plaintiffs' claim alleged that violations of the Labor Law caused the deaths of two employees of third-party defendant Eastmond, who were cleaning a fuel oil tank in preparation for the installation. MSD asserted that the plaintiffs' failure to use proper procedures and equipment while cleaning the tank resulted in their deaths.

Justice Kenneth L. Thompson, Jr., held that the tank cleaning was not a covered activity under the Labor Law and that "there is no admissible evidence to refute Ambassador and Holind's proof that they did not control or supervise plaintiffs' work."

June 2006

 

MSD Win in "Stingray" Case Upheld on Appeal

The Appellate Division has upheld a decision by a lower court dismissing a case against MSD client Atlantis Marine World in Riverhead, New York. The plaintiff, a visitor to the aquarium, claimed that he developed an infection after petting a stingray in the aquarium's touch tank and that the aquarium neglected to warn of the danger of Mycobacterium marinum in the tank. According to the appellate decision, "the defendant met its initial burden by providing evidence that the risk of infection was unforeseeable, as an infection by Mycobacterium marinum at a public aquarium had never occurred and cases of that infection in general were exceedingly rare."

May 2006

 

MSD Uses Plaintiff's Own Testimony to Gain Dismissal for Defendant

MSD obtained a dismissal at trial in Cicciarella v. McLoughlin and Swenson, et. al., a case involving a motor vehicle accident. Associate Stacey Steinberg established that the testimony of all parties in our clients' vehicle, including the plaintiff, demonstrated that MSD's clients were not responsible for the accident, as they were already stopped for approximately five seconds before being hit from the back by a third vehicle.

May 2006

 

Thank You

As we celebrate a milestone in our more than 50-year history, we at Molod Spitz and DeSantis would like to thank you, our valued client, for your loyalty to the firm. Fred Molod, our founding partner, joins principals Alice Spitz and Salvatore DeSantis in commemorating the 10-year anniversary of our partnership.

Twenty attorneys strong, Molod Spitz and DeSantis recognizes the benefits of a dynamic partnership. Over the past decade, we have strived to go beyond representing clients - instead seeking to partner with you to achieve the best result in thousands of cases, including several landmark cases and precedent-setting decisions.

Our reputation as a formidable adversary in the New York court system - one that does not hesitate to see a trial through to verdict - attests to the strength of your team spirit and trust.

Looking ahead, we plan to gain an even greater understanding of our clients' businesses and needs, and further our commitment to the education of claims professionals - while continuing to achieve the successes in the courtroom you have come to expect from us.

In our next decade, we look forward to building on our relationships with our long-time clients and to building long-standing relationships with our new clients. Thank you, again, for partnering with us.

May 2006

 

MSD's Thurm Takes Part in "Don't Court Disaster" Program for Agents

Milton Thurm, Of Counsel to Molod Spitz & DeSantis, participated as a presenter in "Don't Court Disaster," a mock court presentation for the Professional Insurance Agents of New York. The subject matter of the program - which was sponsored by the Excess Line Association of New York - was brokers' and agents' errors and omissions. Mr. Thurm has participated in this event twice before.

April 2006

 

Web Research Disproves Plaintiff's Deposition Testimony

An Internet investigation by MSD associate Dennis Monaco demonstrated that an avid bodybuilder did not sustain a "serious injury" - as defined by New York State Insurance Law — in the case of Croce v. Payne Inc. Mr. Monaco's research revealed that, contrary to deposition testimony, the plaintiff not only remained active, but even excelled as a competitive bodybuilder after his June 2001 automobile accident. Judge David I. Schmidt, Supreme Court, King's County, granted Mr. Monaco's motion to dismiss the case.

March 2006

 

20-Month Gap in Medical Treatment Undermines Claim of Serious Injury

Judge Howard R. Silver, Supreme Court, Bronx County, granted MSD's motion to dismiss the plaintiff's claim of a "serious injury" in the case of DeLeon v. D & W Truck Lines, Inc. MSD associate Dennis Monaco noted that there was a 20-month gap since the plaintiff's last physical examination. He bolstered his argument that the plaintiff's complaints of pain were not supported by objective medical findings by presenting medical reports from two experts — an orthopedist and a neurologist. They concluded that the plaintiff neither had a disability nor required any further orthopedic or neurological treatment, therapy or testing.

March 2006

 

No Second Chances, Case Dismissed

In the case of Cernuda v. Dompereh, a motion for summary judgment made by Julie Molod was granted by Justice Betty Stinson on Feb 1, 2006. The case was dismissed based upon collateral estoppel. In a prior non-jury trial, the two parties were co-defendants. Plaintiff Cernuda did not meet his burden of demonstrating that he did not have a full and fair opportunity to litigate the issue decided by Justice Friedlander in the first trial. Also of interest was Justice Stinson's decision that defendant Dompereh demonstrated good cause to make this late summary judgment motion since Justice Friedlander's decision in the prior action was not entered until after the statutory 120–day period had run in the instant action.

February 2006

 

Memberships & Affiliations

Alice Spitz and Fred Molod attended the tri-annual Harmonie Group Meeting in Florida. This meeting of the insurance industry and the Harmonie Group network included representatives from two of our clients, Adventist Risk Management and Magna Carta Companies, and all appreciated the insights they shared. For additional information on the Harmonie Group, please see their website or contact us.

January 2006

 

Sharing Knowledge with Insurance Professionals

In an ongoing commitment to keep clients apprised of legal issues that affect the way they do business, MSD partners Alice Spitz and Salvatore DeSantis tailored a presentation for its insurer client Guide One. The presentation - which covered current issues regarding labor law - was well-received. Other clients who want MSD to address their claims departments should contact aspitz@molodspitz.com.

December 2005

 

Case Dismissed: MSD Contends Lessee Not Responsible for Fallen Ceiling

MSD prevailed in Johnson v. Yorktown Country Inn, et al., a case disputing who was responsible for a fallen ceiling that allegedly injured an employee of the Volunteers of America (VOA). The plaintiff, claiming to have sustained herniated discs that required two surgeries, had sued the property owner, Yorktown. Yorktown, in turn, sued its lessee, the County of Westchester and the county's licensee, Volunteers of America (VOA) - claiming that, as an out-of-possession landlord, it was not legally responsible for the ceiling collapse. MSD's Milton Thurm moved to dismiss the third-party complaint against the county and VOA - contending that, under the lease agreement, MSD's clients were not responsible for the condition that caused the ceiling to collapse and that the plaintiff had not suffered a grave injury. The court granted MSD's cross-motion, dismissing the case against its clients.

November 2005


It’s 10 p.m. – Do You Know Where Your Claimant Is?

At the request of a client, MSD partner Alice Spitz and associate Stacey Steinberg prepared a multimedia presentation on the use of surveillance in the defense of personal injury actions. The presentation covers the history of the law regarding surveillance and current practical considerations for claims department personnel, those in the workers’ compensation department and outside counsel. The presentation was well-received by the client and is available for other clients who want MSD to address their claims departments. Please contact aspitz@molodspitz.com.

November 2005


MSD Partner Shares Expertise in NYLJ article

In "Standoffs Over Standing Down, an Attorney's Right to Withdraw" (New York Law Journal, October 6), MSD partner Chris Christofides discusses an important legal decision concerning disclaimer and withdrawal of counsel. He writes: “Recently, the First Department Appellate Division in reviewing a motion to withdraw by a defense firm retained by a liability insurer, emphasized that the effectiveness of counsel dictates that the insured must cooperate in their defense and it was not an improvident exercise of discretion for the trial court to grant counsel’s motion.” Mr. Christofides talks about the implications of the decision in the context of other defining cases.

October 2005


Insurance Coverage Issues Arising from Hurricanes Katrina & Rita

MSD's memberships and firm affiliations assist in keeping all our attorneys abreast of the latest significant developments in the law. This month, MSD's Milton Thurm traveled to New Mexico to attend the Excess & Surplus Lines Claims Association Conference where many of the coverage issues arising from Hurricanes Katrina and Rita were considered.

September 2005


Case Dismissed: MSD Argues Too Much Speculation Over Causes of Behavioral Problems

MSD won summary judgment in Concepcion v. Walsh, a lead poisoning case brought against its client, the owner of an apartment building. The Supreme Court, Bronx County, dismissed the case, agreeing with MSD's argument that opinions regarding the cause of the plaintiff's learning disabilities and behavioral problems were too speculative for a jury's consideration. MSD partner Andrew M. Harrison pointed out that no Department of Health lead paint violations were ever issued to the subject apartment. He also argued that medical records documented other possible causes of the problems experienced by the plaintiff (now a teenager) — including a congenital frontal lobe infarction (or stroke) resulting either from an unrelated trauma or premature closure of cranial fissures during infancy.

August 2005


MSD Wins Summary Judgment in Case Over Hospital Housekeeping

The Supreme Court, Westchester County, dismissed all claims against MSD's client — a management company that contracted with a local hospital to train and supervise employees of the hospital's Housekeeping and other departments. The plaintiff in Spencer v. Crosthall Healthcare — a Food Service employee who slipped and fell on a hospital room floor — alleged that a "Wet Floor" sign was improperly placed. MSD partner Andrew M. Harrison successfully argued that, despite regular supervision by MSD's client, the housekeepers were employees of the hospital and, therefore, the plaintiff's sole recourse was Workers Compensation.

July 2005


MSD Expands Subrogation Practice, Welcomes Chris Christofides

We are pleased to announce the expansion of our subrogation practice under Chris Christofides. The expanded subrogation business represents a strategic complement to our insurance defense focus, enabling MSD to provide an even broader range of capabilities for our insurer clients.

Mr. Christofides brings more than 25 years' experience in the courtroom to MSD. His extensive litigation experience encompasses complex property subrogation claims, as well as matters related to insurance defense - from contractors' liability to product liability. His record of trial successes includes high-profile property damage and personal injury cases in New York City. Mr. Christofides also has a strong reputation in the legal community for trying cases that involve novel issues; two such cases are believed to be the first of their kind litigated in New York County.

July 2005


MSD Successfully Argues: Club Owner Not Negligent in Security Guard Assault

Judge David Schmidt granted a summary judgment motion by MSD associate Gene Stith, dismissing a negligence complaint against MSD client Webster Hall Entertainment Corp. The plaintiff, a security guard, sued Webster Hall for personal injuries resulting from an assault while breaking up a fight between two patrons. The finding in Banton v. Webster Hall Entertainment Corp. was that the plaintiff had failed to establish the requisite notice of criminal activity. There had been no similar prior incidents at Webster Hall.

July 2005


MSD Gets Personal Injury Case Dismissed

Judge Thomas J. Dolan dismissed a personal injury case against MSD’s client in which the plaintiff alleged serious injuries resulting from a two-car accident involving the defendant. MSD associate Gene Stith successfully argued in Relly v. Farley, et al that the plaintiff’s claim of two disc bulges, and cervical and lumbar radiculapthy, did not meet the serious injury requirement under Insurance Law §5102(d). MSD called on two experts to give their opinions: a radiologist, who testified that both the cervical and lumbar spine were normal, and a neurologist, who stated that the plaintiff’s motor strength and gait were normal and that there were no physical barriers to re-employment.

July 2005


Building Owner Found Not Responsible Under Law in Effect at Time of Plaintiff's Injury

Further demonstrating its ability to get cases against its clients dismissed, MSD obtained summary judgment dismissing a case against defendant client HLV Associates under a law that was in effect in 2001. The plaintiff alleged that she sustained an injury after falling on a broken sidewalk adjacent to a Brooklyn building then owned by HLV. The plaintiff sued both HLV and the City of New York, claiming negligence in Crane v. NYC and HLV Associates, Kings County. Judge Solomon granted the motion by MSD associate Gene Stith, who argued that HLV did not cause the alleged defect in the public sidewalk, made no special use of the sidewalk and, as the law existed at that time, was not negligent as a matter of law.

The law was changed in 2003, shifting liability for sidewalk accidents from the City to abutting landowners. The law (Int. No. 193) is available here, as well as its companion statute (Int. No. 522), which requires abutting landowners to maintain liability coverage for such injuries. MSD members Frederick M. Molod and Salvatore J. DeSantis have lectured on the impact of these changes and preparedness with regard to these issues for the benefit of MSD's insurer clients.

July 2005


MSD Shares Expertise at Cross-Examination Seminar

MSD's Alice Spitz shared her knowledge of cross-examining plaintiffs at a seminar held by the New York State Trial Lawyers Association (NYSTLA) in June. Her presentation focused on "The Cross-Examination of a Plaintiff in a General Negligence Case." Ms. Spitz was among several trial experts, including a judge, who spoke at the seminar on topics ranging from the basics of cross-examination to lessons learned from specific cases. Ms. Spitz is no stranger to public speaking: She has shared her litigation expertise by lecturing for bar associations, insurance carriers and other organizations, as well as by teaching trial advocacy courses. The presentation for NYSTLA helps further the organization's mission to, among other things, "advance representation of the public by ethical, well-trained lawyers."

June 2005


Jury Awards Unanimous Verdict to MSD Client

Demonstrating MSD's core strength of conducting trials through to successful verdicts, MSD received a unanimous verdict dismissing the case against its defendant client in Korinn Alexander v. Ronzine C. Felago, et al. The jury concluded that plaintiff Alexander did not sustain a "serious injury" - as defined by New York State Insurance Law, Section 5102(d) - in a three-vehicle collision involving MSD client Felago. MSD's Victor N. DeGeorge tried the case in New York State Supreme Court, Westchester County. Mr. DeGeorge called on medical experts, who testified that the plaintiff's injuries were not as alleged and had resolved.

May 2005


Premises Liability Case Shows MSD's Ability to Get Cases Dismissed

While MSD has built its reputation on seeing cases through trial to a jury verdict, the firm is also skilled in ensuring that a case does not see a trial when appropriate. For instance, in the premises liability case of Paramjit Lal v. Ching Po Ng and Lu Hua He, MSD associate Stacey E. Steinberg successfully argued that there was no "triable issue of fact" as to whether MSD client Ng, a building owner, created any defective condition - or had actual or constructive notice of a defective condition - in a concrete abutment on the building's staircase. The plaintiff alleged that a loose piece of concrete from the abutment caused him to fall and sustain injuries to his arm and elbow. The Queens County Court granted MSD's motion for summary judgment, dismissing the case.

April 2005


Success in Re-Argued Case is a Win-Win Situation for Church

After granting plaintiff Glenn Marr's motion to re-argue a case against Seventh Day Adventist Church, the Supreme Court in Queens County upheld its original finding on behalf of defendant and MSD client Seventh Day Adventist Church. MSD successfully defended the Church for the second time in March 2005 in the plaintiff's claim that the defendant failed to prevent a fire set by a trespasser - arson that allegedly caused the plaintiff to sustain an aortic dissection. In November 2004, the Court had granted Salvatore J. DeSantis' motion for summary judgment after finding that the Church did take sufficient minimal security precautions, and that there was no causal connection between the plaintiff's aortic dissection and the alleged negligence.

March 2005


MSD Wins Summary Judgment in Case Against Parade Organizer

In a 48-page decision with potential implications for many other parade accident cases, MSD partner Andrew M. Harrison won summary judgment in favor of MSD's client, a nonprofit corporation that organizes an annual cultural parade attracting more than a million spectators every Labor Day. The 17-year-old plaintiff in Donovan v. West Indian American Day Carnival Association, Inc., et al, had vaulted police barricades and fallen beneath the wheel of one of the floats. Supreme Court, Kings County Justice Mark Partnow dismissed the case against the parade organizer and other defendants. The Court accepted MSD's argument that the decedent plaintiff's actions constituted an intervening factor, so there was no causal connection between the claimed negligence and the accident. Copies of the decision are available on request.

February 2005


MSD Gets Case Dismissed Against Security Guard Following Instructions

MSD won a motion for summary judgment in the case of Williams v. AZ Security. The Supreme Court in Kings County dismissed the case after MSD associate Eileen T. Budd established that (a) it was unforeseeable that a patient at a mental health facility would hide behind a plant and strike a nurse with a fan and (b) under the hospital's specific instructions, AZ Security guards were relieved of any duty to intervene in patient-employee confrontations unless they were part of a trained response team.

January 2005


Past successes are not a guarantee of future performance
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