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! Since charity gifts represent the true holiday spirit, MSD imitated Oprah's Big Give and turned $800 into almost $4,000 for deserving charities. Click here to read about MSD's Big Give.
Defense Verdict for Church in Slip and Fall Case
Plaintiff, recovering from recent hip surgery, claimed she slipped and fell on a large puddle of water during services in defendant's sanctuary. The superintendent, who maintained the premises at the time of the incident, testified that water tracked into the sanctuary on a regular basis when it rained and snowed, and that the area should have been carpeted. Representatives from the Church claimed it had no notice of any dangerous or defective condition and thus no opportunity to rectify it. Following the accident, plaintiff underwent surgery to her right shoulder and right knee, and her treating orthopedic surgeon testified she will also need a hip replacement because of this accident. The jury unanimously found that MSD's client, Marble Collegiate Church, was not negligent. Lawrence Getzler obtained a defense verdict in this New York County case, Wiebusch v Bethany Memorial Reform Church and Marble Collegiate Church.
Toxic Mold Case Dismissed by Court of Appeals
Salvatore J. DeSantis and appellate counsel Marcy Sonneborn were successful in having the Court of Appeals affirm the dismissal of a Complaint against a Manhattan landlord, in Litwack v. Plaza Realty. This is the first time New York's highest court, the Court of Appeals, has heard a toxic mold case, and the decision was an overwhelming victory for property owners. The plaintiff argued that the landlord was responsible for a hazardous toxic mold condition in her luxury apartment. She had complained for many years about leaking air conditioners, and had recently complained about a brown spot on her dining room wall. In addition, it is undisputed that once she had her apartment tested, it had dangerously high levels of mold. However, plaintiff vacated the apartment before she notified her landlord about the testing. The Supreme Court dismissed the case against the MSD client because plaintiff hadn't given her landlord sufficient notice of a mold condition. The Appellate Division affirmed. The Court of Appeals heard the case because there is currently no standard in New York for establishing a property owner's liability for a toxic mold condition. MSD was successful in arguing that a single minor brown spot on the wall and leaking air conditions is not enough to put a landlord on notice that mold can develop in the future. MSD also argued that the medical and scientific community does not recognize inhaling airborne mold as a cause of illness. The Court of Appeals affirmed the dismissal, but did not set a standard for future cases and did not discuss the medical issues.
Premises Negligence Claim Dismissed Against Landlord
The Kings County Supreme Court granted Joni Linker's Motion for Summary Judgment, finding that plaintiff had not sustained his burden of proof of actual or constructive notice of an alleged defective condition in the hallway of defendant's residential apartment building. The Motion was granted on a showing of prima facie entitlement to summary judgment by proving that the alleged condition did not exist for a sufficient length of time to put the defendant on notice. Costello v. Kadar, et al.
Defense Verdict for Church in Employment Discrimination Case
The Seventh Day Adventist Church's fundamental beliefs instruct that sexual relations are a privilege to be enjoyed solely within marriage. The plaintiff, a 5th Grade teacher at the Linden Elementary School of the Seventh Day Adventist Church, although unmarried, became pregnant. The school thereafter discharged her for violating its tenets and engaging in premarital sex. When she began her teaching career at the Seventh Day Adventist School, the plaintiff, a life long Seventh Day Adventist, agreed that she would abide by all the fundamental teachings of the church and be a role model for the students. Her suit for employment discrimination claimed that she was fired because she was pregnant. At trial, Ross Weaver of MSD presented evidence demonstrating that the school's employment decisions were protected by the First Amendment of the Constitution and could not properly be the subject of an action under Federal or State employment discrimination laws. Consequently, at the conclusion of the jury trial in U.S. District Court, Judge Irizarry granted Ross Weaver's motion for a directed verdict for the Church, dismissing the case, agreeing that because of the religious nature of the plaintiff's duties, the ministerial exception applied, and that plaintiff had not been discharged as a result of discrimination but as a result of her failure to abide by the precepts of the Seventh Day Adventist Church. Redhead v. Conference of Seventh Day Adventists
Double Win for Friendly Baptist Church
The Appellate Division, First Department, affirmed summary judgment for MSD's client, the Friendly Baptist Church. The lower court had granted Julie Molod's motion, dismissing the case of Ralph Ronda, a police officer who, while riding on his police scooter, was hit in the rear of the scooter by the driver of the Church's bus. As a result of the injuries sustained, the officer underwent surgery to his left shoulder and left knee. He was granted Accident Disability Retirement by the Medical Board Police Pension Fund. Marcy Sonneborn, appellate counsel for MSD, defended the appeal, demonstrating to the Appellate Court that the lower court was correct that plaintiff's injuries did not meet the "threshold" under New York's No-Fault Law. The Court was overwhelmingly persuaded by the numerous line of duty injury reports which preceded the accident when affirming dismissal of the complaint. Ronda v. Friendly Baptist Church
Defense Verdict in Food Poisoning Case
MSD's Ross Weaver successfully defended the Third Avenue Frontier Restaurant against a plaintiff's claim that he contracted a salmonella infection within hours after eating in their restaurant. Plaintiff, a practicing dentist, claimed his infection and complications forced him to give up dentistry. MSD's presentation of expert evidence proved to the jury that based upon the unique characteristics of salmonella, the infection did not come from the restaurant. Josilevich v. Third Avenue Frontier Restaurant
Defense Verdict for Church
Despite plaintiff’s spinal fusion and arthroscopic surgery from a slip and fall accident while playing basketball, the jury found that MSD’s client, Arverne Church of God, was not liable. Lawrence Getzler obtained a defense verdict in this Queens County case when the jury unanimously found that the defendant Church was not negligent despite claims that water was leaking from a defective roof for months prior to the accident. Representatives from the Church and an independent witness claimed there was no water on the floor where plaintiff fell. Clarke v. Arverne Church of God
Restrained Verdict Won in Dog Bite Case Where Dog Wasn't Restrained
MSD Partner Salvatore J. DeSantis received a restrained verdict in a dog bite case in New York County. The jury found our client, the building owner, 20 percent negligent where the subject dog had bitten two people in the building previously in minor incidents. The plaintiff had been talking to the building’s doorman in the lobby when the dog attacked plaintiff, biting her lip, and knocking her to the floor. The dog owner, who was also found 20 percent negligent, testified that plaintiff had ignored warnings not to pet the dog. Plaintiff had 25 stitches to her lip and needs plastic surgery to correct the resulting scar. The defendants successfully demonstrated that the plaintiff was negligent and that she was overreaching on damages when her lawyer claimed during his opening that her face was bitten off. Plaintiff was found 60 percent negligent and the jury’s total award was $43,500. Moreno v. David Frankel Realty, et ano.
MSD Win in Wrongful Death Case Upheld on Appeal
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’s Marcy Sonneborn successfully argued on appeal that the lower court was correct in dismissing the lawsuit because plaintiff had 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.
Slip & Fall Case Dismissed Against Church
Queens County Judge David Elliot granted Salvatore J. DeSantis' Motion for Summary Judgment, dismissing this case against the Church because MSD successfully proved that plaintiff did not know what caused her to fall. Salvatore DeSantis also successfully argued that the opinion of plaintiff’s expert, who never examined the Church’s gymnasium floor, but still stated that floors of such a type are dangerous to persons wearing leather-soled shoes, was unsupported by evidentiary fact and was conclusory. Finally, Judge Elliott was persuaded by Salvatore DeSantis’ argument that the three witness affidavits submitted by plaintiff were from people who had not, in fact, observed wet spots in the area of plaintiff’s fall. Drummings v. Allen A.M.E. Church
Arbitrator of Fee Disputes
We are pleased to announce that Frederick M. Molod, already serving as a Mediator in New York’s Federal Court with a noteworthy success rate at achieving settlements, has now also been appointed Arbitrator in the 10th Judicial District’s Fee Dispute Resolution program. This program was established to encourage out-of-court resolution of fee disputes between attorneys and clients in a fair, impartial and efficient manner to both strengthen the integrity of professional relationships between clients and members of the bar, and to advance community confidence in the legal profession as a whole.
Experts at Preparing Experts
Alice Spitz lectured to litigation experts of the Gotham Networking Group on the topic of direct testimony and cross examination of the expert witness, providing their members with valuable tips on both preparing for and delivering their opinions and defending them during rigorous cross examination. 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.
MSD is Officially Certified as a Woman-Owned Business Enterprise
We are proud to announce that the New York State Division of Minority and Women’s Business Development has just officially certified MSD as a Woman Owned Business Enterprise. At MSD, we have a sincere commitment to diversity. See our Diversity Page here.
MSD Partner Shares Expertise on Insurance Coverage in New York State Trial Lawyers Institute's Publication
MSD partner Salvatore DeSantis, provides written guidance to other New York attorneys on a decision by New York’s highest court in a significant insurance dispute which addressed the issue of how priority of coverage is determined. His article about it was entitled BP Air v. One Beacon: Court of Appeals Gets the Last Word and was published in the New York State Trial Lawyers Institute’s most recent issue of their Bill of Particulars magazine. Contact us for a copy of this article.
MSD Wins Again
MSD's Salvatore DeSantis, partnering with fellow Harmonie Group member David Keller, shared their knowledge of the application of attorney ethics to internet email by the publication of their article entitled Ethics Now and for the Future in Our High-Tech Email World in the latest issue of the Federation of Defense & Corporate Counsel’s publication FDCC Quarterly which you can download in its entirety here. At MSD, we appreciate the speed of email communication and strive to ensure that such communication is protected at the same time.
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!
MSD Wins Again
The Second Department Appellate Division affirmed summary judgment for MSD’s client, Greyhound Bus Company, a Laidlaw subsidiary. The lower court had granted Alice Spitz' Motion, dismissing the case of a passenger who was injured in a three vehicle collision on the New Jersey Turnpike against Greyhound. Marcy Sonneborn defended the appeal, demonstrating to the appellate court that all witnesses placed the blame for the accident with the defendant Jiffy truck, and not with the Greyhound Bus or the third vehicle, a Peter Pan bus. In fact, the eyewitness testimony demonstrated that the Jiffy truck entered a lane of traffic in which the Greyhound bus was traveling, hit the side of the Greyhound bus, which caused the Greyhound bus to veer left and hit the Peter Pan bus. Merchant v Greyhound Bus Company
Construction Site Accidents: The Law and the Trial
MSD's Alice Spitz was a faculty member in the New York State Bar Association’s CLE seminar 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. Alice used policy language, statutory language and examples from actual cases in her written materials disseminated at the seminar, which were published by the New York State Bar Association and are available upon request. Evaluations after the event by the participants consistently rated her presentation as excellent.
Defense Verdict in Exploding Lighter Fluid Case
Plaintiff claimed, that while attending Sunday services at his Church, he was asked by a Church employee to light the Church’s barbecue grill and cook food leftover from a Church party held the night before. Plaintiff sustained 1st and 2nd degree burns to his hands, chest, left groin, neck, shoulders and serious disfigurement, claiming that the lighter fluid he used to accomplish this task spontaneously exploded due to exposure to direct sunlight. MSD’s client, the defendant Church, claimed that the grill had already been lit and heating for 45 minutes and that when plaintiff poured lighter fluid on the fire, this caused a flashback. This was supported by the Emergency Room nurse whom Lawrence Getzler subpoenaed to testify at trial. She testified that plaintiff told her at the hospital that the incident occurred when he was lighting the charcoal briquettes on the barbeque grill, when the flames flew back with the lighter fluid, igniting his clothes and hands. The lighter fluid manufacturer settled prior to trial pursuant to a confidentiality agreement. Lawrence Getzler obtained a defense verdict in Kings County when the jury unanimously found that the defendant Church was not negligent. Neamonitis v. SS Anargyroi Taxiarxhis and Gerasimos Greek Orthodox Church.
Bronx County Plaintiff Doesn't Meet Serious Injury Treshold - Two Surgeries Found Not Causally Connected
Justice Betty Owen Stinson in Bronx County granted MSD’s motion for summary judgment based upon plaintiff’s failure to satisfy the serious injury threshold of the New York Insurance law. Plaintiff, a police officer, was driving a three-wheeled police scooter when he was rear-ended by defendant’s vehicle. Plaintiff underwent arthroscopic surgery to his left knee and left shoulder following the accident. In her motion papers, Julie Molod argued that the medical evidence established that plaintiff’s operations and injuries were not causally related to the accident. Plaintiff had a history of prior injuries from his years as a police officer. Although plaintiff’s attorney submitted both an affidavit from the plaintiff and his treating orthopedic surgeon, Justice Stinson granted the motion and dismissed the complaint
Presentation On The Defense of Nail Salons
Alice Spitz and Joon Park joined two adjusters from Magna Carta Companies and conducted a presentation regarding the defense of Nail Salon cases. Issues focused on the cultural diversity in the industry, investigation, sanitation requirements and practices, the types of cases and their values, and the current insurance policy endorsements incorporated into Nail Salon policies.
Defense Verdict in Lack of Supervision Case
A seven-year old plaintiff claimed that he was injured by another child while under the supervision of Chernomorets, a corporation that ran a soccer program. The Chernamorets were playing the Brooklyn Patriots at a gymnasium in Public School 186 in Brooklyn, New York, while plaintiff was "pretend" wrestling with another soccer player. While wrestling, plaintiff was flipped over and his arm was broken, requiring open reduction and internal fixation. Salvatore DeSantis obtained a defense verdict in Kings County when the jury found that defendant Chernamorets, which had two coaches supervising ten children, was not negligent. Lavina v. Chernamorets
Premises Liability Case Dismissed on Procedural Grounds
Alice Spitz was successful in having plaintiff's Complaint dismissed against our client, Very Ltd. d/b/a Au Bar due to the plaintiff’s willful defiance of four Court Orders for outstanding discovery. The Court noted that the plaintiff offered no reasonable excuse for failing to timely respond to outstanding discovery demands and the Court further noted that the plaintiff provided said discovery only after they were served with Ms. Spitz’ Motion to Dismiss. The Court dismissed the Supreme Court, New York County Complaint. Sheridan v. Very, Ltd. d/b/a Au Bar, et. al.
Labor Law Case Dismissed
Plaintiff, a 46 year old porter employed by the owner of the building in which he worked, was severely injured on the job and allegedly permanently disabled when he fell approximately 15-20 feet from an unsecured ladder. Plaintiff claimed a violation of Labor Law §240(1) and sued the managing agent of the building in which he worked and fell. After discovery, MSD moved for summary judgment based upon the exclusivity of the Workers’ Compensation law. Plaintiff argued that because he did not take any direction and control from the managing agent, that a question of fact existed as to whether he was an employee to whom the Workers’ Compensation bar applied. The Court, however, adopted MSD’s arguments that the managing agent was a “special employer” based upon our suggested interpretation of the management contract and the affidavit of our client, and awarded summary judgment dismissing this action against our client. Bautista v. David Frankel Realty, Inc.
Bronx Lead Poisoning Case Dismissed by Appellate Division
Alice Spitz and Marcy Sonneborn were successful in having the Appellate Division affirm dismissal of a Complaint against MSD client, a Bronx landlord, in Concepcion v. Walsh. The plaintiff argued that the landlord was responsible for a hazardous lead paint condition in the apartment in which the family lived after the minor’s blood test determined that his blood/lead levels were above the accepted standard. In New York City, a plaintiff need only proffer testimony of a peeling paint condition and notice to the landlord that a child lives in the apartment in order to recover for lead poisoning. MSD was successful in arguing that the mother’s deposition testimony was too vague on the issue of a peeling paint condition and the Court found that there was no evidence of the actual existence of a lead hazard in the apartment. Significantly, the Court also rejected plaintiff's argument that the evidence of lead paint in another apartment in the building constitutes evidence of lead paint in the subject apartment. On the issue of damages, the court found that there was not even an issue of fact that the child sustained a lead injury since the medical expert used by the plaintiff relied upon an unsworn report of the child’s psychologist that established that lead in the blood was the cause of the child’s numerous academic, behavioral and emotional problems and that there was no admissible evidence of actual impairment. Read about it in the April 2007 Mealey’s Lead Litigation Report.
Appellate Division Reverses Trial Court and Dismisses Complaint Against Clemco Industries Corp.
MSD was successful in the Appellate Division, First Department, in obtaining reversal of the denial of our Motion for Summary Judgment on behalf of our client, Clemco Industries Corp., in Supreme Court, Bronx County, and the case was dismissed. Winning a reversal for a defendant in a death case in the First Department, well known for its plaintiff-oriented bent, is a huge victory! Alice Spitz and Marcy Sonneborn argued that despite the tragic death of Jamine Michael Donovan, a long-time welder with Yula Corporation, the supplied air respirator helmet manufactured by Clemco Industries Corp. was not involved in the accident. The evidence proved that the cause of Mr. Donovan's death was asphyxiation due to insufficient oxygen in the air canisters. The Clemco Industries Corp. helmet neither caused the accident nor contributed to it. The Appellate Division agreed and reversed the lower court decision. Donovan v. All-Weld Prods. Corp.
Appellate Division Affirms Grant of Summary Judgment to Hospital
Salvatore J. DeSantis and Marcy Sonneborn successfully won summary judgment, and affirmance on appeal in the Appellate Division on behalf of Crothall Healthcare and Soundshore Hospital. The plaintiff, injured in a fall while delivering food trays, was an employee of the Hospital. Plaintiff claimed that the Hospital's manager, Crothall Healthcare, was negligent in the manner in which it trained the Hospital's maintenance staff. The plaintiff argued that the maintenance staff were "special employees" of the defendants, while she was a "general employee" of the Hospital. The Court ruled that the plaintiff was limited by the exclusivity provisions of the Workers Compensation law, and affirmed dismissal. Spencer v. Crothall Healthcare
Cooperative Wins After a Decade of Litigation with Tenant
Demonstrating success in trial skills as well as appellate advocacy, MSD Partner Chris Christofides had a double victory, first at the trial level, and then on the appeal. Plaintiff's action involved alleged water damage to her apartment from different sources over a period of years. She was paid for the first loss under the provisions of her homeowner's policy, but plaintiff alleged there was additional damage in the ensuing years that she did not then claim. The Court sustained Chris' objections and denied the admission into evidence of plaintiff's handwritten diaries for lack of foundation, relevance and as being self-serving. Due to the lack of admissible evidence, the Court held that the plaintiff failed to make out a prima facie case and granted a directed judgment in favor of each defendant, dismissing plaintiff's Complaint in its entirety. On appeal to the Appellate Term for the First Department, the per curiam decision affirmed the trial court stating: "Even affording plaintiff every favorable inference which could reasonably be drawn from the evidence adduced at trial, we agree that plaintiff failed to establish any actionable negligence on defendants part or that any such negligence caused the 1991 water leaks giving rise to this action." Gamiel v. Harbutt
Defense Verdict - Camper's Claim Falls
MSD obtained a defendant's verdict in Guerrier v. Sunshine Acres Camp. Plaintiff Gabrielle Guerrier, an eight year old camper, sustained a medial condylar fracture in her dominant left arm, requiring open reduction and internal fixation, when she fell off the top bunk of a bunk bed that lacked guardrails. At trial, MSD successfully moved to preclude testimony from the plaintiff's self proclaimed child safety and protection expert, Grace Hotchkiss Scarano, by demonstrating that she was not qualified to offer expert testimony relative to the incident in question. We were further able to demonstrate that guardrails for bunk beds in camps in New York State were not required at the time of the incident and would not have prevented a fall occasioned by the manner in which the plaintiff leaned over the side of the bunk bed.
MSD Shares Expertise with Federation of Defense & Corporate Counsel
MSD's Salvatore J. DeSantis, partnering with fellow Harmonie Group member David Keller, shared their knowledge of the application of attorney ethics in our high tech world at the 2007 Winter Meeting of the Federation of Defense & Corporate Counsel in Scottsdale, Arizona. Their presentation focused on the use of email between counsel and client and the various ethical considerations this raises for attorneys desiring to give their clients the most zealous and confidential representation. At MSD, we appreciate the speed of email communication and strive to ensure that such communication is protected at the same time.
Alice Spitz Becomes President-Elect of Harmonie
Alice Spitz was elevated to President-Elect of the national Harmonie Group for a two year term. 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 North America. It is an invitation only organization which extends membership invitations only to experienced, highly qualified law firms that have earned the respect of their peers, the courts and their clients in negotiation, litigation, and trial advocacy. You can access the Harmonie Group's law firm directory here. Alice will become President of the Harmonie Group in 2009 for a two year term.